Rights of the many or the power of the few?
15 November 1999
As the incorporation of the European Convention on Human Rights into English law has less than a year to go, Matheu Swallow reports on the impact of the act on the UK's judges.
The quiet life is over for judges. Even before the Pinochet saga focused the media spotlight on Lord Hoffmann because of his membership of Amnesty International, the quiet anonymity judges had previously enjoyed was being consigned to history.
Transparency is the buzz word as society demands scrutiny of the whole judicial process, particularly the mystery surrounding the appointment of judges.
Crucially, the impartiality of judges is also no longer simply assumed.
A high profile panel of judges in the Court of Appeal - including Lord Chief Justice, Lord Bingham and Master of the Rolls, Lord Woolf - is currently considering five separate cases of alleged or potential bias in the judiciary.
One of the cases involves Lawrence Collins QC, a partner in Herbert Smith's litigation and arbitration department. A claimant is appealing against two judgments made by Collins while he was sitting as a deputy High Court judge. The claimant argues that there was a conflict of interest because Collins, on behalf of Herbert Smith, acted in a previous case against her husband, and that this interest should have been declared.
In all of these cases it is less a question of actual bias than a perception of bias.
There are some at the public bar who argue that the incorporation of the Human Rights Act into UK law next year is going to lead to far greater potential for actual bias in the judiciary.
There is no doubt that it will add a whole new perspective to every area of law, but many quarters also argue that it will radically alter the judicial function by adding a political dimension to its role.
Recent judgments have added to this fear and, in turn, threaten one of the fundamental rules of law - parliamentary sovereignty.
In the annual Atkin lecture delivered in October the honourable Michael Beloff QC, joint head of chambers at 4-5 Gray's Inn Square, explained the enhanced scope of the judiciary's powers.
"Incorporation of the European Convention of Human Rights will give judges legitimate power to invalidate executive action as violating its provisions.
"Lord Woolf's and Lord Justice's laws in particular have hinted that parliamentary sovereignty may not be absolute," said Beloff.
R v Director of Public Prosecutions ex parte Kebilene & ors, on which the House of Lords ruled last month, is seen by many as the most significant recent case.
The case involved three Algerian terrorist suspects. Their original trial was halted after it was claimed that parts of the Prevention of Terrorism Act, under which they had been charged, was in breach of the Human Rights Act.
Gordon Nardell, a public law barrister and tenant at 6 Pump Court, says that the judgment of Lord Steyn in this case makes clear that while parliamentary sovereignty has been preserved, it has been drastically curtailed.
Rabinder Singh, a barrister at 4-5 Gray's Inn Square, says Lord Hope of Craighead, in his judgment, gave a clear indication of the way things are going.
Hope said: "It is now plain that the incorporation of the European Convention on Human Rights into our domestic law will subject the entire legal system to a fundamental process of review and, where necessary, reform by the judiciary."
It is also clear that the convention has already had a significant impact on the way cases are decided in our national courts.
Singh says: "Courts are increasingly prepared to make comments on the European Convention, even before full implementation."
Nardell says that recent judgments and the arrival of the Human Rights Act will inevitably lead to judges becoming embroiled in reviewing primary legislation, adding a political and ethical dimension to their role.
The Kebilene ruling, says Nardell, has removed the escape route, or fallback, of parliamentary sovereignty invoked by judges when a tricky conflict between European judgments and national primary legislation arises.
"That alibi is no longer available for judges. The direct results of the Human Rights Act, through Kebilene, expressly refuse [judges] to assume whether [primary legislation] is incompatible," he says.
Beloff in his Atkin lecture, warned of the potential dangers of a politicised judiciary and argued vehemently against it.
He says: "Judicial review provides a salutary discipline against abuse or misuse of executive power. It is, however, unwise for judges to proclaim themselves as consciously filling a political vacuum left by an ineffective opposition.
"Ultimately, it must be accepted that judges lack democratic legitimacy. As unelected persons it is not their role, except where compelled to do so, to subvert the sovereignty of Parliament. The more involved in political issues they become, the more important it is that they should be seen to be non-political."
However, Singh argues that further comments made by Lord Hope indicate that judges are fully conscious of their role in a democratic society and the boundaries of their power.
"In this area difficult choices may have to be made by the executive or the legislature between the rights of the individual and the needs of society. In some circumstances it will be appropriate for the courts to recognise that there is an area of judgment within which the judiciary will defer, on democratic grounds, to the considered opinion of the elected body or person whose act or decision is said to be compatible with the convention," Lord Hope said in his judgment.
But Beloff believes the scope of judges' power is in danger of being taken too far.
"In an era when the judicial function has become inextricably involved in politics, it is no longer appropriate that judges should police laws in whose making they have a constitutional role," he said.
It is imperative, said Beloff, that judges are not only independent, but are also seen to be so.
However, while it is widely accepted that the incorporation of the Human Rights Act will mean judges increasingly trespass on the decision-making turf of Parliament, many argue that this is a positive move and not the end of an impartial judiciary.
"I don't agree with those who suggest judges will become politicised in any negative sense," says Singh. "There is no evidence to suggest they will become party-political."
Singh believes the establishment of a judicial appointments commission will be crucial to preserve the independence of the judiciary.
"Far from politicising the judiciary it would insulate it from political intervention," he says.
Lord Lester QC of Herne Hill, a leading practitioner at Blackstone Chambers and a firm advocate of incorporation, believes the Human Rights Act can only have a positive impact.
Lester says that all but two of the 14 European states have already made it enforceable in their courts and that there is no foundation at all for saying it will lead to a politicised judiciary.
"The convention has been used successfully for the last 15 years," he says.
"What we're doing is something every other country has done. There is a huge amount of experience across the Commonwealth."
Lester and Beloff are old adversaries. Some years ago, Lester was in court when his opponent Beloff passed him a note with the letters "FFM" scrawled on it. Puzzled, he inquired further. "FFM stands for filthy foreign muck," Beloff explained, thus starting the tradition for the two of them to exchange such notes when European case law dominates UK proceedings.
However, although the anecdote may seem humourous on the face of it, what it reveals is the already overbearing effect the European courts have on UK law.
But while Lester is strongly in favour of the European Convention, his old adversary Beloff is extremely concerned about both the direction and pace of change.
Beloff says: "I think in some instances we are going too far, a view I share with the Lord Chancellor."
Cases such as Kebilene and R v Secretary of State for the Home Department ex parte Simms are leading to incorporation already, way ahead of the official deadline of October 2000, and Beloff questions the validity of this.
"It is unwise for some judges to proclaim that they should make judgments as if the Human Rights Act was - which, by design it is not - already in force," he stated in the Atkin lecture.
It is clear that incorporation brings with it certain inherent dangers to the fundamental principles of parliamentary sovereignty and separation of powers.
However, while some would prefer a proper Bill of Rights to enshrine fundamental human rights, incorporation of the convention is currently the best available option and is widely supported.
The establishment of a judicial appointments commission will also help temper fears over judges being able to impose their political will on the courts.
Beloff argues however, that ultimately the perception alone of political entanglement in the judicial process threatens judges' independence.
As he said in the Atkin lecture: "Rules often matter less than practise - convention and compromise have valuable roles. But if perceptions of the essence of justice have become more sensitive, then the institutions which provide that justice must adapt to those perceptions."