Legal lords a-leaping to my Lord of Derry's air

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The Independent Online

In this column I have written several times that the fact that most people are uninterested in something does not mean it is unimportant. The example I usually choose is the balance of payments and the position of sterling, which obsessed successive governments until the 1970s. It is much the same with the law. Few people are interested in it, unless they are professionally engaged or personally affected. It is still important politically.

The most interesting item of domestic news last week was that Lord Bingham, the Lord Chief Justice (born 1933), would go to the House of Lords in the autumn as a Lord of Appeal. He would do so as the senior Law Lord, replacing Lord Browne-Wilkinson, who has retired, and leapfrogging Lord Slynn (born 1930), who in the normal course of events would have expected the senior post to be his. At the same time Lord Justice Scott, of the arms-to-Iraq inquiry, is being promoted to the Lords, while Lord Woolf, the Master of the Rolls (the head of the Court of Appeal), who was a Law Lord 1992-96, is becoming Lord Chief Justice in place of Lord Bingham. In this game of judicial musical chairs the chap at the piano is Lord Irvine, the Lord Chancellor. Indeed, he does not content himself with stopping the music but directs the participants where they are to sit next. He is behaving as a politician: a senior member of the Cabinet. In his case the seniority that is traditionally accorded the Lord Chancellor in the pecking-order is less a matter of courtesy than of reality. What is Derry up to?

The answer must be that he is exercised by the Human Rights Act, which is to come into force in October, the very time these judicial changes are to take effect. The Act has already come into force in Scotland, with results that have not so far been very adequately reported in England.

What it does is incorporate the European Convention on Human Rights into United Kingdom law. It tries to do this by laying down that courts and judges "must take into account" the Convention itself; judgments of the European Court of Human Rights; and, what has perhaps been insufficiently noticed, decisions of the European Commission and the Committee of Ministers which have been taken in relation to the Convention.

In addition, primary and subordinate legislation must be read and given effect in a way which is compatible with the Convention. As far as I can make out, "subordinate legislation" includes ministerial regulations made under statute and what the Scottish Parliament or the Northern Ireland - though not, it appears, the Welsh - Assembly may choose to get up to.

If the court concludes that the legislation, or any part of it, is incompatible with the Convention, it may make a declaration of incompatibility. But in that case "the Crown" - that is, the Government - is entitled to notice and can argue the toss about whether the legislation is compatible or not. Moreover, a minister in charge of a Bill must, before second reading, make a statement that in his or her view the measure is compatible with the Convention. This is formally called "a statement of compatibility". However, the next paragraph lays down that a minister may also say that, though he or she is unable to make a statement of compatibility, the Government nevertheless wishes the House to proceed with the Bill.

Well! This is quite extraordinary. Such a course of action might well win admiring leading articles in the Daily Telegraph and the Daily Mail. But it is rather like a burglar knocking on your door and announcing politely that he shortly intends to deprive you of your property. A sycophantic judge - he would certainly be accused of being sycophantic - might then be able to find that the minister was mistaken and that the measure was compatible after all. Conversely, a declaration of incompatibility is not binding on anybody. Life goes on. Such a declaration "does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given; and is not binding on the parties to the proceedings in which it is made". We are living in a strange world of statements of compatibility or of outright preliminary defiance by ministers, and declarations of incompatibility by judges. It is all statements and declarations, after which matters remain much as they were before.

Clearly what happened was that Lord Irvine and his advisers ingeniously tried to square the doctrine of parliamentary sovereignty with the promise to incorporate the Convention into UK law. In fact - or, rather, in law - the sovereignty of Parliament was ended with the European Communities Act 1972 and our accession to the Community on 1 January 1973. The several cases involving the Spanish fishermen known as Factortame have already demonstrated that. The powers of ministers, an entirely different matter legally, have also been brought under the gaze of the courts through the development of judicial review.

So the Human Rights Act may not be quite such a novelty as it may appear. In the past 30 years both Parliament and ministers have been subject to legal restraints on their freedom of action that did not exist before. Both under European law and under judicial review, those limits can be enforced, as they cannot be under the Human Rights Act, except through public opinion.

The Act does not make the courts supreme. But it does allow them to state that, in their opinion, the Government is acting wrongly. This typically English solution (for Lord Irvine, though a Scotsman, practised at the English Bar) is likely to lead to more trouble than a straightforward transfer of power to the judges such as is recommended by Lord Justice Laws, among others. We are liable to find ourselves with a government saying that a piece of legislation is all right while the judges disagree - or with a government deciding to go ahead whatever the judges may decide later on.

Lord Woolf, who knows the subject of public law as well as anyone, has now been shunted into the sidings to deal with the criminal classes. Lord Justice Scott is almost equally knowledgeable. I would expect him to be not in the least impressed by the pretensions of government. And Lord Bingham? He is a commercial lawyer who was put into his old job by Lord Irvine's predecessor, Lord Mackay. In 1996, when he was appointed, his fellow judges wanted Lord Justice Rose to be Lord Chief Justice. Lord Mackay knew this but "forgot" to convey the intelligence to the then prime minister, Mr John Major.

In 1977-78, as a QC, he conducted the inquiry into the breaking of oil sanctions against Rhodesia. He let the 1966 Labour government down lightly. As David Owen puts it in his memoirs: "It was an excellent factual report but strangely devoid of the moral indignation that some of the great investigations of the past have brought to bear." More recently he has supported Mr Jack Straw over the restriction of the right to trial by jury. So perhaps, from the Government's point of view, Lord Irvine has chosen wisely.