Fierce criticism by the Government and the press of judicial decision making, particularly in asylum cases, has been a feature of the past year. Mr Justice Collins has been challenged several times – most recently in R(Q) v Home Secretary, where social security benefits had been refused to asylum seekers for failing to make an application as soon as reasonably practicable after arriving in the UK. Although the Court of Appeal upheld Judge Collins’s decision, the conflict between the courts and Parliament appears as stark as in the mid-1990s. At that time, the Government lost a series of high-profile prison cases, such as Ex p Thompson and Venables (1998), when the House of Lords reversed the Home Secretary’s decision to keep the murderers of infant Jamie Bulger in detention for 15 years.
In fact, the English approach to public law has traditionally taken a very restrictive view of its role. Parliament is supreme. The courts must not upset the doctrine of separation of powers by substituting its views. The court will only overrule a decision on its merits if the decision maker has lost leave of his senses.
But disputes with Government have a sharper edge now the Human Rights Act (HRA) is in place. The act makes it unlawful for public authorities to breach convention rights and requires the court to interpret legislation, as far as possible, to make it compatible with convention rights.
The HRA has squarely put the courts in the firing line, by requiring them to look at policy issues when deciding whether a public authority has breached convention rights. As a result, the courts have sought to soften the tension between courts and Parliament by emphasising the principle of judicial deference – that the courts must not usurp the role of Government when it is the most appropriate decision maker.
To date, the courts have acknowledged that public authorities have a wide discretion in making policy judgments. Clashes between courts and Parliament have been avoided. Stricter principles apply in areas where the court has a particular expertise, such as in criminal cases. Consequently, the House of Lords in R v A (No 2) (2001) had little hesitation in rewriting the rape shield law that protected rape victims from being cross-examined about their sexual history.
The House of Lords directly grappled with the principle of judicial deference in the Pro-life Alliance case (2003). Lord Hoffmann said that the judicial deference means that majority approval is necessary for a proper decision on policy or the allocations of resources. Lord Walker, on the other hand, concluded that any formulation of the deference principle as ‘one size fits all’ would be impossible.
But this emphasis on a principle of judicial deference can be overstated. The HRA is recognised as being a constitutional statute. Constitutional legislation mandates a close scrutiny of human rights violations. That is the very purpose for which the HRA is enacted.
The courts and Parliament can engage in a democratic dialogue. The HRA does not give the courts the last word when cases are brought – unlike the American Bill of Rights– nor can the courts strike down legislation. The HRA envisages that Government will respond to court decisions by altering its practices or legislation, which is the way the Canadian government routinely responds to cases under its human rights legislation.
The challenge for the courts is to ensure respect is given to the will of Parliament, while maintaining the judge’s traditional role of vindicating human rights. The test for the coming years is to formulate principles that justify intrusive interference with governmental decisions, but that recognise Parliament’s democratic credentials. The perceived fear of conflict between courts and Parliament can be exaggerated. The need to defer to Parliament or the executive is less compelling once it is acknowledged that the HRA ensures the other branches of government will have a second bite of the cherry.