Comment: Can we trust the judges to make our laws?

Donald Macintyre on freedom of information
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The Independent Online
We are on the brink of a constitutional change which raises questions decidedly more fundamental than a Welsh Assembly. Next month the Government will publish a White Paper incorporating the European Convention of Human Rights into British law. The logic of this step is irresistible. Even now, when it is faced with a ruling that is in breach of the Convention, the British government invariably, if grudgingly, conforms. The current immigration bill going through Parliament, for example, contains - in order to conform to a ruling by the European Court of Human Rights - belated provision for appeal against summary deportation on security grounds. But it seems crazy that to seek enforcement of the Convention, to which the UK has been a party since 1951, a citizen has to embark on the tortuous and often prohibitively expensive process of appealing to the European Court of Human Rights in Strasbourg, on which no British judge sits, and which takes around five years to reach a decision.

Anything more calculated to deter is difficult to imagine. Throughout the wide spectrum of non-Conservative opinion, and among some Conservatives as well, there is now agreement that it should be up to British courts, in the first instance, to apply the Convention. But there has been a protracted debate inside and outside Whitehall over just how it should be incorporated. Should the new system be like that in Canada, where the courts have the power to strike out laws made by parliament if they regard them as an infringement of the nation's Charter of Rights and Freedoms? Or should it be like that of New Zealand where the courts interpret the law as far as possible in accordance with the country's Bill of Rights, but cannot overturn statutes which they decide do not. In other words, in New Zealand, though not in Canada, it is still up to parliament and not the courts to change the law.

Here ministers have finally resolved the argument in favour of the more limited New Zealand model. During a lengthy discussion of the issue at the first meeting this week of the joint Labour-LibDem Cabinet Committee, Paddy Ashdown and his colleagues were assured by the ministers that the White Paper has not yet reached its final draft. But Lord Irvine, the Lord Chancellor, has always been a New Zealand man. Even Jack Straw, the Home Secretary, who had at one time leaned towards the more radical Canadian option, has been persuaded that it would be better at least to start with the more modest form of incorporation. It's still possible that, as in Hong Kong, the courts will be given some power to repeal sections of previous legislation. But Tony Blair's willingness to devolve power - whether to the Bank of England, to a Welsh assembly, or a directly elected mayor of London - will not extend to handing judges the power to render null and void laws made henceforth by his government.

This will upset a lot of people. Many of those in favour of constitutional reform believe that the only way to protect individual rights is precisely to give the courts the absolute right to strike down laws which are judged to undermine them. This is seductive. And especially after the dark years in which only judicial review restrained recidivist offenders like Michael Howard from chronically exceeding their powers. The dangers now may be different but they are potentially even greater. Wouldn't you rather have your freedom in the hands of those nice, liberal judges, the Woolfs and Richard Scotts and Binghams, than handed to a whips' office dedicated to the ruthless use of party discipline to act as the chief engine of an elective dictatorship?

Seductive, but, for at least two reasons, not conclusive. The first is that some rights have an awkward habit of conflicting with each other. Given the failure of successive governments, supine in their fear of the power of the press, to act on privacy, incorporation may produce a welcome body of case law curbing press intrusion. But the ECHR right to privacy could, on some occasions, conflict with the ECHR right to freedom of expression. The right to abortion, freely legislated by Parliament, could clash with an ultra-strict interpretation of the right to life. Should, as in the US, rights to self-protection make impossible the post-Dunblane anti-gun legislation? And should rights of free assembly always supersede, for example in Northern Ireland, the security of the majority of citizens. This isn't a case against the enforcement of rights; it is a case against leaving that enforcement entirely to the unfettered and varying choices of individual judges. These decisions are essentially political; do we really want to deprive elected politicians of the power to make those decisions if they choose?

The other reason to hesitate is this: for all the highly-desirable expansion of judicial review during the last 20 years against abuses by ministers, judges haven't, in the round, proved themselves quite the reliable liberals the reformers like to think they are. In the new edition of his wonderful Politics of the Judiciary John Griffiths brings up to date - with the miscarriage of justice cases and the rulings against the press in the 1980s - his account of their record over the last 30 years. On issues from race relations to police powers and government secrecy, judges have been supporters, sometimes quite creative and pro-active supporters, of the "conventional, established and settled interests". As one of the most eminent legal academics in the country, Griffiths isn't disrespectful of judges - just very clear about where their role should begin and end. Michael Howard's sentencing proposals may have been extreme; but elected politicians do have the right to have a penal policy, even if judges don't agree with it. And is their own record in using sentencing discretion really so perfect? "Far more than on the judiciary," Griffiths writes, "our freedoms depend on the willingness of the press, politicians and others to publicise the breach of these freedoms and the continuing vulnerability of ministers... and other interests to accusations that these freedoms are being infringed." Especially at a time like this, when the media have been seduced, and the executive's parliamentary majority is unhealthily monolithic, it's tempting to turn wishfully to the judges, even unelected judges appointed entirely by the government, and with retirement ages of 75. But in the end judges are no substitute for boring, imperfect old democracy.