Human rights, the judiciary and the constitution: Past and future challenges

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At the Constitution Unit’s 20th anniversary conference Dawn Oliver, Stephen Sedley and Richard Cornes assessed the Unit’s contribution to debates around human rights and the judges in the UK, and how it can feed into the challenges that lie ahead. Juliet Wells offers an overview of the session.

This is the second of a series of posts based on presentations at the Unit’s 20th anniversary conference, held on 23 June 2015.

Professor Dawn Oliver took the lead in the session reflecting on the Unit’s wide-ranging contribution to political and legal discourses on human rights and the judiciary, while the respondents were Sir Stephen Sedley and Richard Cornes (who was unfortunately unable to attend on the day, but sent a statement read by the session chair James Melton). The panel therefore reflected rich expertise across public law and offered a thoroughly engaging range of perspectives on the Unit’s impact, and on the possible future direction of these vitally important areas.

Human rights figured particularly prominently in the discussion, and much was coloured by the existential threat now posed to the Human Rights Act 1998. Looking back, Dawn Oliver emphasised the prescience of Nicole Smith’s 1996 report, Human Rights Legislation, in anticipating not only that the Human Rights Act would need a ‘champion’ in future years if it was to survive in the long-term, but also that the legal implications of repealing the Act and replacing it with a ‘home-grown’ bill of rights would be profoundly complicated by the effects of having incorporated the European Convention on Human Rights into domestic law. In particular, it was identified that the long-term consequences of the relationship between Strasbourg and the domestic courts that the Act set up would generate real controversy, even as it would affirm and entrench the importance of Strasbourg jurisprudence in cases before the UK courts. Looking forward, she reflected on the possible consequences of repeal, as well as on the causes of the apparent ‘tidal wave’ of hostility towards the Act. In considering both of these issues, she suggested that a lack of respect for the rule of law, manifested most conspicuously in the shift towards the view that the courts should not be accorded any responsibility for the UK’s compliance with its international treaty obligations, was at work. This, she thought, could be traced back to the 9/11 attacks, which did much to ‘shake people into hostility’ towards the Human Rights Act. Richard Cornes built upon this by suggesting that enacting a British Bill of Rights, which would in many ways be essentially similar to the Human Rights Act, will serve only to refocus the attention of rights-sceptics onto the UK courts, and thus to intensify claims that judges are ‘self-aggrandising’.

Sir Stephen Sedley disputed that opposition to the Human Rights Act was attributable to the effects of 9/11 – the tabloid press, he pointed out, had unfairly labelled the Act a ‘criminals’ charter’ as early as 2000. This set the tone for his contribution, which sought to debunk a number of assumptions commonly associated with the Human Rights Act and its operation in practice: for instance, he suggested that, taking the jurisprudence of the UK courts as a whole, it is clear that there is in fact no tradition of excessive deference to the judgements of the Strasbourg court; and in responding to a question on the possibility of strike-down powers for the UK courts, he pointed out that this is an issue that exists only at the margins of UK law, since the overwhelming majority of cases turn on the direct application of the relevant legislation.

In relation to the judiciary, too, concern for the health of the rule of law emerged as a theme. Dawn Oliver questioned the effectiveness of the Constitutional Reform Act 2005 in maintaining the rule of law, drawing in particular on ministerial hostility to judicial decisions, on the sacking of Dominic Grieve as Attorney-General, and on certain comments made by Chris Grayling in the course of his tenure as Lord Chancellor to vindicate this idea. However, this may be contrasted with the dominant theme in The Politics of Judicial Independence in the UK’s Changing Constitution, a recent work by Robert Hazell, Graham Gee, Kate Malleson and Patrick O’Brien. The book, which Dawn Oliver described as ‘major contribution to our understanding of the working of the new formal legal regime of separation of powers between the judiciary and politicians’ suggests that judicial independence and the rule of law are essentially political achievements, sustained through regular and constructive interaction between politicians and judges.

What became clear, in any case, was that there was a consensus that the possible threats to the rule of law that were identified must be taken seriously. From Dawn Oliver’s proposal that the Lord Chancellor ought to have legal training, to the idea (which arose also in Vernon Bogdanor’s opening address) that a citizens’ convention could help to give the public a sense of ‘ownership’ over future human rights instruments, the emphasis was on finding effective solutions to the forces seemingly jeopardising both the position of the judiciary and the system of human rights protection in the UK. This was an emphasis, then, which was both pragmatic and forward-looking in nature – a fitting way of paying tribute to the Constitution Unit’s work on human rights and the judiciary.

About the Panel 

Professor Dawn Oliver is Emeritus Professor of Constitutional Law in the UCL Faculty of Laws

Sir Stephen Sedley is a retired Court of Appeal judge

Dr Richard Cornes is a Senior Lecturer in Public Law at the University of Essex

The panel was chaired by Dr James Melton of the Constitution Unit.

About the Author

Juliet Wells graduated from Oxford University with a BA in Law in 2014. She is now a Research Volunteer at the Constitution Unit, working on the Judicial Independence Project.

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