The Lords Constitution Committee took evidence from Lord Phillips (President of the Supreme Court) and Lord Judge (Lord Chief Justice) yesterday. The topic of the meeting was the Committee’s current inquiry into the judicial appointments process but the discussion touched on some broader themes, including the role of the judiciary and of the European Court of Human Rights in Strasbourg.
For watchers of the judiciary the exchange repays watching – you can watch the whole thing here: http://www.parliamentlive.tv/Main/Player.aspx?meetingId=9199
There’s no transcript yet but one should appear on the Committee website soon: http://www.parliament.uk/business/committees/committees-a-z/lords-select/constitution-committee/.
The most newsworthy part (it received a good deal of press coverage today) was Lord Judge’s opinion that the UK courts are not necessarily bound by the decisions of the Strasbourg court. Lord Phillips expressed the view that the Human Rights Act meant ultimately that ‘Strasbourg is going to win’. Lord Judge appeared to disagree, and suggested that a debate would eventually need to happen in the UK Supreme Court about what exactly the Human Rights Act means when it says that UK courts are required to take account of Strasbourg decisions. It is at least arguable, he said, that having taken account and given due weight to these decisions, the British courts are not obliged to follow them. One might interpret this as a very polite suggestion that the Supreme Court should change its approach to this issue.
(Whether there is an actual disagreement here is open to interpretation, but there is certainly a live issue. At the moment the UK courts treat Strasbourg precedents as binding and a decision that is directly addressed to the UK certainly binds the UK in international law. And while precedent does not formally bind in international law it is generally very persuasive. As such Lord Phillips’ point seems entirely correct. However, traditionally the Strasbourg court has spoken of affording a ‘margin of appreciation’ to states and it could certainly be argued that – again as a matter of international law – Lord Judge is correct to say that there should be some space for disagreement about what the provisions of the Convention mean between domestic courts and Strasbourg.)
On judicial appointments, both judges agreed that the President of the Supreme Court should not have a role in the selection of his successor and both expressed hostility to the involvement of Parliament in appointments. Lord Judge expressed hostility to the idea of a ‘beauty parade’. However, they were open to alternatives, such as the involvement of the Lord Chancellor throughout the process of selection of senior judges (rather than just at the end, as at present) or the involvement of an MP as part of the selection committee. Both judges were at pains to point out that the role of the UK Supreme Court is, unlike some of its peer Courts in other countries, not political and that different considerations therefore apply to selecting judges for it.