Rights: how the law lords line up
Friday 25 July 1997
The Lord Chancellor, Lord Irvine, signalled on Wednesday night that when the European Convention on Human Rights is made part of British law, judges' powers will still be limited, in the sense that they will not be able to "strike down", as the saying goes, Acts of Parliament. But the effects of this belated constitutional change are no less momentous for that.
The late Lord Devlin, one of the most brilliant jurists of his generation, retired prematurely at 57 after just a few years as a law lord, bored with the job and the focused, restricted sort of life that went with it. But for the current line-up of a dozen Lords of Appeal in Ordinary - the latest appointment, of the Court of Appeal judge Lord Justice Saville, was announced recently - judicial life will never be the same again.
The notion that the House of Lords, the highest court in the land, will thus be transformed into a US-style Supreme Court, boldly laying down the law where legislatures have failed to tread, after lengthy confirmatory hearings into candidates' backgrounds, politics and personal beliefs, is fanciful. But even the limited new judicial powers and responsibilities envisaged by the Lord Chancellor are giving the most interventionist judges food for thought.
The received wisdom among the Conservative-leaning media during the last Conservative administration was that unelected judges were too prone to interfere with political decisions. They had suddenly become too "liberal"and despotic and undemocratic to boot. In times past they were castigated for being too "conservative" and mostly reckoned, probably wrongly, to vote Conservative as well. The truth is more complex, even though the present set of law lords is probably the most "liberal" in recent history.
Law lords have already come under fire (or earned praise, depending on your standpoint) for drawing on sources beyond parliamentary statutes and the common law (the body of court rulings built up over the years), such as the European Convention and American or Commonwealth rulings when setting out what the law now is. Incorporation of the convention into UK law now puts them firmly in the controversial arena of reaching decisions on political and social issues. Alongside that, for good measure, they could find themselves presiding over novel demarcation disputes about the jurisdictions of the Westminster and Scottish and Welsh parliaments.
A furious argument on the form that incorporation of the convention should take is now under way. But under the model the Government is most likely to adopt, judges would not be given the power to strike down a provision in primary legislation passed before incorporation or since. It would be for Parliament to change statute law once a violation was found. But will it get round to doing so, especially where "unpopular" groups such as gypsies, protestors or terror suspects are the proposed beneficiaries?
In any event, whatever the precise form that incorporation of the convention takes, there are controversial arenas into which the judges will be drawn. All the so-called "margin of appreciation" cases - those raising questions of morality, religion or social policy - have traditionally been remitted back by the Strasbourg court for nation states to decide for themselves. In future, our own "supreme court" will have to decide what to make of them. Lord Hoffmann, a law lord himself, cites the relationship between freedom of the press and personal privacy as an issue that is likely to be an early candidates for challenges under articles 8 and 10 of the convention.
Important questions are at stake because the press, in the view of a great many, is hampered by too many restrictions favouring public figures and corporations (like the plaintiff-friendly libel laws), while the private lives of individuals have too little protection. Should judges lay down a balance in the arena of freedom of speech, producing a new set of definitions for a democratic society in the late 20th century? The Lord Chief Justice, Lord Bingham, has been criticised for saying as much; but if Parliament will not act, the answer must be yes.
It is not as though judges have not already laid down similar rules - such as the one stopping councils suing for libel - and made numerous rulings in the field of social policy. It was a special five-judge Court of Appeal that made marital rape a crime, for example. But contrary to the clamour about judges getting above themselves, they are playing a cautious hand in relation to their future role.
Lord Hoffmann raises an acute question, saying: "If your bill of rights contains abstract political rules to be interpreted according to judges' notions of what a democratic society requires, there could be a difference of opinion between judges who take a more or less authoritarian view. Why isn't it then a matter of public concern as to whether you appoint a judge of one view or another?"
It is, of course, a matter of public concern and this one reason why the Government is considering the creation of a judicial appointments commission to help advise on who should be given high judicial office. This, however, will be a far cry from US Senate confirmation hearings. Under the modestly improved system that might be introduced, much reliance will continue to be placed on the fact that UK judges are independent of government and on the view that while they hold their own beliefs and opinions, they are not partisan and they are as fitted as any parliamentarian to reflect broad trends in public opinion.
Yes, the entire British human rights system, when it arrives, will be imperfect and something of a fudge. But it is no bad development for all that. As in virtually all the other countries that have signed up to the convention, it will be down to the judges, as it always has been, to make good law from some very hard cases, for no one else will. Will Britain be a better, more liberal place in 20 years' time as a result? Probably, yes.
Lord (Robert) Goff of Chieveley, 70
As befitting the son of a lieutenant-colonel, resembles a Second World War upper class movie hero, but brainy. A product of Eton and Oxford (first class honours in jurisprudence), and the senior law lord. Caused a stir when he said that the law lords have greater freedom than the rest of the judiciary to "mould and re-mould the authorities to ensure that practical justice is done within the framework of principle". Important judgments include ruling that local councils cannot sue for libel.
Lord Nicolas Browne-Wilkinson, 67
Lancing and Oxford, son of a clergyman. As president of the Employment Appeal Tribunal, he handed down a string of rulings that shaped unfair dismissal laws. Used right to sit and vote in House of Lords to the full during last parliament's Police Bill, when he mobilised concerns that led to amendments. But non-interventionist on moral issues. In the case of Anthony Bland, the Hillsborough victim who the law lords allowed to die, he said, "I have no doubt that it is for Parliament to decide the broader issues which this case raises." (But, Parliament has not.)
Lord (Gordon) Slynn of Hadley, 67
Sandbach School, London University, and Cambridge. Lengthy service as Advocate-General to European Court of Justice, Luxembourg, becoming Britain's judge from 1988 to 1992. Tory Euro-sceptics complained that he went too "native" in Luxembourg, criticisms which were firmly ignored by Lord Mackay, the former Conservative Lord Chancellor, who appointed him. After years of deciding the impact of the European Communities Act on British law, is likely to have an open-minded, constructive attitude to European human rights convention.
Lord (James) Clyde, 65
One of two Scottish representatives who normally sit on panels hearing Scottish cases. Edinburgh Academy, Oxford. Experience in social field. Conducted inquiry into mistakes by social workers investigating child abuse in the Orkneys. Heavily criticised in 1995 over allegedly "soft" sentencing in two high-profile cases.
Lord (James) Hope of Craighead, 59
Edinburgh Academy, Rugby, Cambridge. Regarded as one of the brightest Scottish advocates of his generation. Former Lord Justice-General of Scotland and President of the Court of Session. Outspoken critic of the last government's mandatory sentencing policy, clashing with the then Scottish Secretary, Michael Forsyth. One of the panel in yesterday's key ruling on mandatory "lifers", which could allow Myra Hindley to argue that her continued incarceration is unlawful.
The Lord Chancellor
Lord (Alexander, "Derry") Irvine of Lairg, 57
A product of the best of the Scottish state education system, followed by Glasgow University and Cambridge, where he collected first- class honours. He may be a Labour politician but he is a judicial conservative, who believes that legislative, executive and judicial functions must be kept firmly separate. He has warned judges against exercising "judicial supremacism". He has not done much judging but as Lord Chancellor he will be entitled to pick and choose what House of Lords cases he wants to be involved in deciding.
Lord (Johan) Steyn, 64
University of Stellenbosch followed by Oxford. One of two South Africans (with Lord Hoffmann) among the law lords. Has a commercial background, but chaired the Bar's race relations committee when a High Court judge. Viewed as occupying the middle ground.
Lord (Leonard) Hoffmann, 63
University of Cape Town and Oxford. He has demonstrated formidable skills in legal reasoning and, more controversially, moral philosophy - not something all judges think should be part of the judicial function. Is in favour of incorporation of the human rights convention but warns that the public must expect some surprises, whichever model of incorporation is chosen. "There is not going to be a queue of statutes to be `struck down', but what is going to be affected... is the common law."
Lord Justice (Mark) Saville, 61
Rye Grammar School, Oxford. Not yet a peer - his appointment was announced earlier this month. Was appointed to Court of Appeal only in 1994 so a relatively swift elevation. Has been appointed primarily for his commercial expertise following the retirement of the commercial specialist Lord Mustill. That provoked complaints that Lord Irvine's first law lord appointment has involved someone with little experience of human rights.
Lord (Anthony) Lloyd of Berwick, 68
Eton scholar, first class honours in classics and law, Cambridge. Viewed as a non-interventionist "conservative", but not all his interpretations necessarily yield "conservative" results. In a leading case involving Gloucestershire County Council's duty under the 1970 Disabled Persons Act to provide home care needed by disabled people, three of the five on the panel said the duty could be circumscribed by the council's lack of resources. But the supposedly "conservative" Lord Lloyd delivered a passionate dissenting opinion.
Lord (Michael) Nolan, 68
A product of Ampleforth, the Roman Catholic public school, and Oxford. Better known in role as chairman of the Committee on Standards in Public Life and is viewed as anti-establishment and anti-status quo. His appointment by the former Prime Minister John Major sparked howls of outrage in Tory circles, but being anti-sleaze does not necessarily mean he is universally "liberal"; and as a judge he is viewed by legal commentators as traditional in outlook.
Lord (Donald) Nicholls
of Birkenhead, 64
Birkenhead School, Liverpool University and Cambridge, first class honours all round. Viewed as a "conservative" with a brilliant legal brain. Has Chancery background - the most academic "thinking" branch of the law. Formerly served as Vice-Chancellor of the Chancery Division.
Lord (Brian) Hutton of Bresagh, 65
Shrewsbury School and Oxford, where he shone in jurisprudence. The representative from Northern Ireland, he is present on all panels hearing appeals from the province. Heavy criminal experience during eight- year term as Northern Ireland Lord Chief Justice until his appointment in January.
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