Judges' claims criticised by Labour law chief

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The Independent Online

Legal Affairs Correspondent

The shadow Lord Chancellor, Lord Irvine of Lairg, claimed last night that some senior judges were challenging the constitution by saying they have the right to overturn some laws.

Lord Irvine made the assertions during a speech detailing the developing relationship between Parliament and the judiciary, and the increasing use of the courts for judicial review of government policy.

Speaking to the Administrative Law Bar Association in London, he picked out examples of senior judges challenging the supremacy of Parliament while speaking outside court which all made assertions "contrary to the established laws and constitution of the United Kingdom ... since 1688".

He said: "Recently ... a number of English judges, notably Lord Woolf, have written extra-judicially that in certain purely domestic circumstances the courts may hold invalid statutes duly passed by Parliament."

The Law Lord, Lord Woolf, had argued that the courts "could justifiably refuse to recognise and give effect to legislative action which sought to undermine the rule of law by removing or substantially impairing the powers of review of the High Court".

Lord Irvine also quoted a speech by the the High Court judge Sir John Laws in which he said that the democratic credentials of an elected government could not justify its enjoyment of a right to abolish fundamental freedoms. Sir John had added: "The need for higher order law is dictated by the logic of the very notion of a government under law ... The doctrine of parliamentary sovereignty cannot be vouched by parliamentary legislation; a higher-order law confers it and must of necessity limit it".

Lord Irvine cited a second High Court judge, Sir Stephen Sedley, maintaining that sovereignty lies not in Parliament but in the constitution, which consists of a framework of principles, such as democracy and respect for human rights which cannot be denied, even by Act of Parliament."

Lord Irvine said there had been no sufficiently important abuse by Parliament to justify judges rewriting the constitution in this way.

"Many would regard as inconceivable, on the part of any Parliament which we can presently contemplate, any assault upon the basic tenets of democracy which might call for the invocation of the judicial power claimed, and if there were an attack, the judges could probably do nothing about it.

"I am as conscious as any of the need for eternal vigilance. But if there ever were such an assault, it would surely be on the political battlefield the issue would be resolved."