In his article ‘Power and accountability’, Roger Smith refers to the dissenting opinion of Lord Atkin in Liversidge v Anderson. Certainly in my law training it was promoted as a beacon of enlightenment, which at that time had not come to fruition. Mr Smith suggests that it took 30 years for judicial review to catch up.
This year in the Supreme Court there was another powerful dissenting opinion by Lord Wilson in the Prince Charles letters case (R (on the application of Evans) v Attorney General): ‘How tempting it must have been for the Court of Appeal (indeed how tempting it has proved even for the majority in this court) to seek to maintain the supremacy of the astonishingly detailed, and inevitably unappealed, decision of the Upper Tribunal in favour of disclosure of the Prince’s correspondence!
‘But the Court of Appeal ought (as, with respect, ought this court) to have resisted the temptation. For, in reaching its decision, the Court of Appeal did not in my view interpret section 53 of FIA [Freedom of Information Act 2000]. It rewrote it. It invoked precious constitutional principles but among the most precious is that of parliamentary sovereignty, emblematic of our democracy.’
That dissent is worthy of the plaudits given to Lord Atkin because it sums up what the issue is really about – balance and ultimately where accountability rests for matters crucial to the wellbeing of our society. As an elector, and with the collective will of my fellow citizens, I can get rid of politicians who do not represent the common will.
As a citizen, what mechanism have I to tell the judges and fellow lawyers that they are wrong and our common will is paramount? As a citizen, what role do I have in the appointment of judges? Did I have a say when it was decided that the European Convention on Human Rights would be interpreted as a ‘living document’, so that it extends beyond what was in the mind of the authors? Power has to rest with the people through democracy, otherwise we will live in a dictatorship of the lawyers.
Democracy is not perfect and there is a role for powerful judges to protect minorities. But the consequence of the judges going too far will be the undermining of the rule of law. Then the judiciary will become another institution that has lost public support because of its hubris.
Brian T Scott, Newcastle upon Tyne