Professor Conor Gearty looks at how recent legislation has affected the role of judges and their position within the country’s system of governance


I want to reflect on the role of the judges and how this has been affected by recent legislative changes, both the Human Rights Act 1998 and the Hunting Act 2004. The first of these has produced many cases, the second a major legal challenge with implications for how the judges approach their business in the future.



The great success of the case law under the Human Rights Act so far has been a foregrounding of function, with the judges assessing carefully what they are truly specialist at before diving in with expansive judicial glosses on the law they are being asked to interpret. Decisions on the burden of proof, the criminal process, the punishment of offenders, police powers and the like have rightly attracted the rigorous application of human rights law. So too have those decisions concerning vulnerable persons (prisoners, terrorist suspects and asylum seekers, for example) which carry quasi-penal consequences.



These are the kinds of areas that judges are used to dealing with, that fall clearly within their sphere of competence. But cases which could theoretically engage the European Convention on Human Rights, on housing, on taxation, on planning, on welfare or on some other issues of public policy perceived to be outside what the judges have usually done, or to involve a whole array of potential litigants beyond the claimant before them, or to be in some other kind of way imaginative or distinctive – these are rightly likely to be given short shrift as being outside the areas in which judges should involve themselves.



What happens when the judges view that a subject matter is right up their street and therefore calls for close judicial scrutiny, and yet it is one on which the legislature also feels strongly, and where it has legislated quite intentionally to achieve certain outcomes? A brilliant feature of the Human Rights Act is that it both anticipates and resolves this problem. The law can only be twisted so far to accord with convention rights – beyond the realm of what is possible, the judges need to defer to Parliament, even in an area that they believe to be one in which they are particularly specialist. The only remedy available to them in such circumstances is the unenforceable declaration of incompatibility, a declaration not of defiance but of deference, a judicial observation rather than court order.



This is where the concept of judicial deference properly fits: whereas restraint is about a judge not drifting into the deep end of public policy, deference is about having to give way even when he or she is in the shallow end. After one or two false starts, the senior judiciary has shown an impressive collective awareness of where they fit in this new regime.



Are the judges likely to shift from their current well-crafted position? Jackson v Attorney General was the case in which the Hunting Act 2004 was challenged as beyond the powers of Parliament to enact – it will be remembered that the legislation, which banned hunting with dogs, had been achieved only in the face of the opposition of the House of Lords, and had therefore only got to the Queen for signature through invocation of the procedures for bypassing the Lords set out in the Parliament Acts of 1911 and 1949.



The legal point in the case seemed entirely clear – the Parliament Acts set out a special way of bypassing the upper house, disallowing such a short-cut in just two situations (concerned with budgetary matters and avoiding elections) which unarguably did not arise here, and that therefore the law was entirely legitimate. But a number of the nine Law Lords who heard the case saw fit to utter a series of dicta which may yet prove to have a serious effect on relations between the judiciary and the other branches of government.



Eschewing the obvious – that the 2004 Act was legitimate because the process under which it had been enacted was legitimate, and that that process was legitimate because the Parliament Act 1949 had been a form of delegated legislation properly made under the 1911 Act, there being no additional constraints on the Commons’ power under the parent statute that could be read into the 1911 Act so as to lead to any different conclusion than this – the Lords were left with the task of explaining what exactly the beast before them was if it was not (as they all said it was not) a species of delegated legislation.



The meaning of ‘an Act of Parliament’, previously so simple – Commons, Lords and Crown – was, as a result, unnecessarily complicated. Exactly how this played out in the hunting context is not my concern here: the 2004 measure emerged from the process unscathed, its (I would say misplaced) dignity as an act of the sovereign legislature upheld and so we do now have a hunting ban.



But some of their Lordships were worried that if they did not weave some new judicial controls into what Parliament could do under the Parliament Act, then it was possible that at some future point in time, Parliament could use the legislation to do something truly dreadful, abolish elections perhaps (by cancelling out the prohibition on postponing elections in one ‘Act’ and then indefinitely postponing them in the next) or moving the administration beyond the rule of law, or some such fundamentally authoritarian manoeuvre.



A dread of some hypothetical horror in the future is one of the great driving forces in the argument for constitutional reform: ‘Look what might happen under our current system; we must act now to make it impossible.’ Lawyers in general and judges in particular are deluded if they think that the constraints that they erect today can prevent such dreadful situations unfolding tomorrow. Hitler brushed aside a lot more than the few negative rulings of the Weimar judiciary that he encountered on his way to power, and it is unlikely that a Hitler figure in Britain would be different.



Restraints of this sort are far more likely to be successfully called in aid to defy democratic government than they are to prevent despotic takeover. That is why we should not succumb to the temptation to turn our fear of an unlikely and – if it were to materialise – legally unstoppable future into the driving force of our constitutional jurisprudence today.



In Jackson, Lord Bingham saw this and explicitly allowed that Parliament could use the 1911 Act to extend its own life. Certain of his colleagues could not help but hedge their bets. A number of them were prepared to countenance at least a discussion of striking down laws which were designed ‘to abolish the House of Lords... or to prolong the life of Parliament’ (Lord Browne), cause ‘a fundamental disturbance of the building blocks of the constitution’ (Lord Carswell), or ‘attempt to abolish judicial review or the ordinary role of the courts’ (Lord Steyn). Lord Hope summed up the underlying assumption of this group when he observed that ‘parliamentary sovereignty [was] no longer, if it ever [had been], absolute’, asserting instead that the ‘rule of law enforced by the courts is the ultimate controlling factor on which our constitution is based’.



Such dicta suggest that the judges are indeed above Parliament and that they can strike down legislation which they chose not to recognise as such because, though it has passed the Commons and Lords and received the assent of the Crown, it nevertheless does not fit with judicial preconceptions of right and wrong. Such an approach would run contrary to the whole scheme of the Human Rights Act, which in turn depends on an assumption (hitherto strongly backed by the courts) that Parliament is indeed truly sovereign. It would disrupt a constitutional settlement in this country that has now lasted over 300 years and has served the interests of the nation very well.



I believe that now is a good time to clarify the right role of the judiciary in Britain’s system of government. We must be vigilant against the mistake of allowing our enjoyment of a particular generation of unusually progressive and thoughtful judges to mature into a theory that would give their successors as well as the current incumbents power over our democratic branch. In this regard, there may now have been enough appointments for a proper sociological analysis to be made of the appointments to the bench for which the new Judicial Appointments Commission has responsibility: what kind of people are coming through? How diverse are they? Would we trust them to police our democratic system in a few years time on the look-out for ‘fundamental disturbances’ of which they disapproved?



If we were ever to have a truly social democratic government in the UK, some decisions – the renationalisation without market compensation of state assets sold off in the Thatcher/Major era; the abolition of private schools or, at very least, the denial of charitable status to them; a prohibition on second-home ownership; a ban on private vehicular transport in urban areas; a strengthening of union collective bargaining; and yes, contra Lord Brown, the abolition of the House of Lords – might seem quite mad to the kind of men (and women?) who may already have started their journey to high judicial office.



But their version of what is mad should never on that account alone be described as bad or, worse still, unconstitutional and therefore unlawful. Matters of policy are for elected representatives, policed by the community, not the courts.



This is an edited version of the JUSTICE Tom Sargant memorial annual lecture given by Professor Conor Gearty of the Centre for the Study of Human Rights at the London School of Economics. Conor Gearty’s latest book, Civil Liberties, has just been published by OUP