The Judicial Independence Project recently held two seminars for politicians, judges, lawyers and academics, run under the Chatham House Rule. The first, on ‘Law, Politics and the Future of the Human Rights Act’ on 2 February, was jointly organised with Prof Dawn Oliver and Middle Temple. The headline conclusion was that most speakers expected that the Coalition Government’s Commission on a British Bill of Rights would come to nothing, leaving the Human Rights Act (HRA) intact. The nature of Britain’s international human rights obligations – under the Convention but also increasingly, and much more directly, under EU law – entail that Britain cannot really take away from Convention rights but can only add to them. However, some thought that there was still a possibility that the HRA might be weakened after the current process.
Several speakers also argued that the UK courts are not obliged to follow the decisions of the European Court of Human Rights in Strasbourg in every circumstance, and that Lord Bingham’s argument to this effect in the Ullah case was wrong. The UK could make greater use of the margin of appreciation afforded by the Convention to member states. However, there was also positive reference to the dialogue that occurred between the UK Supreme Court in connection with the Al Khawaja and Horncastle cases.
Speakers also acknowledged the phenomenon of public discontent with the HRA. This discontent is based mainly on perception rather than substance and survey evidence reveals very high support for human rights but poor support for the HRA itself, and poor understanding of the Act. But politicians will not ignore this public discontent while it exists.
The second seminar was on ‘Judicial Independence and Judicial Appointments’. Speakers commented on the vulnerability of the Judicial Appointments Commission (JAC). The Commissionis a young organisation but has already been reviewed by the Ministry of Justice (in 2010; the result was positive) and included, and then excluded, from the Public Bodies Bill as part of a list of quangos that were potentially to be abolished. As one speaker put it ‘we’ve planted a daffodil and a number of times we’ve pulled the daffodil out of the ground to review whether or not it’s working’. The JAC needs time to develop and establish itself.
There was some discussion about the role of Parliament in appointments. Some participants (although not all) felt that judges currently have too much involvement in appointment and argued that judicial independence does not require the involvement of judges in the selected of their successors. One suggested that a greater role for the Lord Chancellor and Parliament in appointments would be of benefit to judges. By increasing the legitimacy of appointments and by getting politicians to invest in the process, judges would gain some protection from conflict with politicians. It was suggested that UK Supreme Court justices, in particular, should not be appointed without the approval of a select committee.
You can read short notes of both of these seminars on the Project website:
Law, Politics and the Future of the Human Rights Act