Former lord chief justice says law should be changed to make it clear British courts do not have to implement Strasbourg rulings.
The law should be changed to make it clear that British courts are not obliged to implement judgments of the European court of human rights (ECHR), according to the former lord chief justice.
Declaring that Strasbourg “is not superior to our supreme court” in London, Lord Judge, who retired in October, said parliamentary sovereignty should not be exported to “a foreign court”.
He is the third senior judicial figure in recent weeks to warn about the dangers of an emerging “democratic deficit” if the ECHR continues to evolve into in effect a law-making body and forces the UK government to give prisoners the vote against parliament’s expressed will.
Last week Lord Justice Laws, the longest-serving court of appeal judge, called on UK courts to stop deferring to Strasbourg on every issue. The week before, the supreme court justice Lord Sumption criticised the ECHR for exceeding its legitimate powers, and undermining the democratic process.
Their interventions are clear evidence of growing judicial resentment of the absolute authority of the Strasbourg court. Even Lady Hale, a staunch defender of the Human Rights Act, expressed concern in a speech last week that “the current problem facing both Strasbourg and the member states is whether there are any limits to how far the [European convention on human rights] can be developed”.
In his wide-ranging speech to the Constitution Unit at University College London, which included a sideswipe at the home secretary, Theresa May, Judge said: “My profound concern about the long-term impact of these issues on our constitutional affairs is the democratic deficit … in our constitutional arrangements parliament is sovereign.
“It would make sense for the [Human Rights Act] to be amended, to express that the obligation to take account of the decisions of the Strasbourg court did not mean that our supreme court was required to follow or apply those decisions, and that in this jurisdiction the supreme court is, at the very least, a court of equal standing with the Strasbourg court.
“Are we … prepared to contemplate the gradual emergence of a court with the equivalent jurisdiction throughout Europe of that enjoyed by the supreme court in the United States of America?”
Judge insisted he was not adopting a pro- or anti-European stance, adding: “You can argue for and against prisoner voting rights … My personal belief is that sovereignty on these issues should not be exported, and we should beware of the danger of even an indirect importation of the slightest obligation on parliament to comply with the orders and directions of any court, let alone a foreign court.”
In a separate passage, Judge hit back at May’s address to the Conservative party conference criticising the judiciary. He said: “I suspect that I was not the only judge, and I suspect that it was not only judges who were astounded to read the observation of the home secretary at the recent Conservative party conference that some judges chose to ignore parliament and go on putting the law on the side of foreign criminals instead of the public.”
The former lord chief justice also warned that the decision to amalgamate the office of justice secretary and lord chancellor, currently held by Chris Grayling, had left the judiciary without an independent voice at the highest level of government.
“The role of the lord chancellor [traditionally the head of the judiciary] has been diminished,” Judge said. “Faced with this situation, I asked … to see the prime minister on a more or less regular basis about twice annually to speak to him about matters of concern to the judiciary.”
The problem, he suggested, could be partially solved if the lord chief justice, who is currently prohibited from speaking about the administration of justice in parliament, was allowed to address the House of Lords.
Judge also said he had become “increasingly dissatisfied” over new funding arrangements for the courts which were being overshadowed by the financial requirements to sustain the prison service. Future lord chief justices should be given the power to block the justice secretary’s demands, although the final decision should be subject to parliament’s authority. “If the separation of powers is to mean anything at all, the concurrence of the lord chief justice is required,” Judge said, “and … his concurrence to any change affecting the administration of justice should, from now on, automatically be built into any proposals for further change.”
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