This week’s Queen’s Speech had little to do with governing the nation and everything to do with setting out dividing lines for the election, so I took the opportunity to set out a problem that I very much hope the next Government will resolve.
One of the biggest threats to the democratic authority of Parliament and Government has come from the judges.
Over the past quarter of a century, we have seen a steady shift in power to the courts. To begin with, we saw an expansion of the power of the courts to review the exercise of power by the Executive. Traditionally, this power was exercised with restraint, but the courts no longer feel so constrained.
In 1995, Lord Irvine, later Lord Chancellor, called for judicial restraint, and gave three reasons: the constitutional imperative, whereby Parliament gives powers to Ministers and others, for good reasons and in reliance on their knowledge and experience; the lack of expertise which made the courts ill-equipped to take these decisions; and the democratic imperative, whereby politicians derive authority in part from their electoral mandate.
That is the nub of it: Ministers and MPs can be booted out at the next election; judges cannot.
The Human Rights Act made the situation worse. The Human Rights Act requires our courts to apply the European Convention on Human Rights in every decision they make. The Convention was drawn up in the aftermath of WWII as a safeguard against any revival of Nazism and the rights it seeks to protect are framed in very wide terms. Its authors would turn in their grave were they able to see the cases brought in reliance on it today.
Any decision about these rights requires a balancing of competing rights. The fundamental question is who should be responsible for striking that balance: elected MP’s or unelected judges? On terrorism, Parliament twice, after great debate, reached its view. Yet twice the judges have held that Parliament got it wrong. In doing so, they were not seeking to deliberately challenge the supremacy of Parliament, but doing what Parliament had asked them to do.
The question is this: should Parliament have asked them to do it? I believe not.
In his recent speech, the Director of Public Prosecutions took a different view, yet he failed to engage with this crucial argument. What he needed to do, but didn’t, was to justify the transfer of responsibility for balancing competing rights from elected politicians to unelected judges.
The DPP suggested the Supreme Court might lead to a constitutional court. Yet in other jurisdictions where courts have a political role, the political backgrounds of candidates for judicial office are scrutinised. I do not think we want to go down that road, but if judges are to continue to make what are in effect political decisions, people will be increasingly interested in the political background of judges.
I hope that David Cameron renews the efforts of the last Conservative Government to persuade the European Court of Human Rights to increase the extent to which it respects the right of member states to decide these matters themselves. If the Court saw itself as a backstop to prevent the infringement of fundamental rights, it would command greater respect. It should be less prone to intervene in decisions, which involve the balancing of competing rights.
David Cameron proposes to replace the Human Rights Act with a British Bill of Rights; I hope it will restore responsibility for this balancing act to politicians that the public can elect or boot out as they see fit.
These matters do not often hit the headlines, but they are fundamental to the rights and freedoms of the British people. Parliament’s ability to defend those rights has been seriously weakened, and I hope that the next Government will be able to redress the balance.
Read Michael’s response to the Queen’s Speech.
( 26 comments ) Tags: Bill of Rights, Human Rights Act, Queen's Speech
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[...] The Blue Blog » We must replace the Human Rights Act with a … [...]
Comment by M Tasker on November 22, 2009 at 3:19 pm
Sounds like a plan to me. MP’s can be “Booted out” if need be but it would be far better if they actually involved the people they represent a bit more in decision making instead of following the party line. ASK the people more. They might trust you more!
Comment by Stewart Cowan on November 22, 2009 at 3:54 pm
“I hope that David Cameron renews the efforts of the last Conservative Government to persuade the European Court of Human Rights to increase the extent to which it respects the right of member states to decide these matters themselves.”
I imagine this will be nigh on impossible, so Mr Howard, please campaign vigorously for a total withdrawal from the EU and then we can have that British Bill of Rights and anything else we want with our rediscovered freedom.
Let’s just do it!
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[...] The Blue Blog » We must replace the Human Rights Act with a … [...]
Comment by graham on November 22, 2009 at 4:11 pm
this human rights act should have been thrown out long ago. we already have laws to cover evertthing .this act only serves to make the legal proffession richer and leaves loopholes for all unsundry to escape from ,there one problem though if anyone has the ability to read then they should not be voting lib/lab or con they are all tarred with the same brush to further their own financial ends they are not for britain
Comment by Ian McCallum on November 22, 2009 at 4:42 pm
Sadly David Cameron will have little or no success in achieving these ends. He has no bargaining power. He openly admits that he wants to remain at the heart of the EU but to return specific powers to the UK. The EU will simply say Non, Non! … and he will say, “Well I tried ny best.”
Respect the wishes of the voters and give a referendum on continued membership and when you see that we clearly do not want this, it will be possible to negotiate a new trading relationship with Europe. In the process you will take back ALL powers, control of our borders and save £Billions.
Moreover, people will also consider you to be the hero of our times.
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[...] The Blue Blog » We must replace the Human Rights Act with a … [...]
Comment by J.Stravers on November 22, 2009 at 6:34 pm
Just put the GREAT in to Britain again,and the Con. party will try hard.
But you and all the other parties waffle and waffle and nothing gets done,you ALL just lack the guts,”Oh dear what will the voters think”.
Well most of the voters I talk to just think that MP,s are a load of self seving money grabbing fit for nothing.
No wonder people vote more and more for the BNP.
The manegement of this country could be done better by a 5 year old,and don’t just look at the Labour governement,you lot (Major,and non descripts after him)cocked it up just as well.
I have no doubt you lot will get in and I hope you are as hard as hell and drive the right policies through no matter who thinks what.
And I hope you come out of Afganistan as from yesterday,this is one war where no one can defeat the Taliban,except by nuking them.
Comment by Steve Townsend on November 22, 2009 at 6:34 pm
I agree with all you have said. However Our ability to influence is very poor at the moment isn’t it? We have just escaped a freeby for Tony who was fishing for the Presidential role, Not sure who and how the Lady whatever managed to get the other role, she didn’t even know as there was no speech prepared and Mandleson another un voted for person.
Who is running the agenda ? The unvoted for PM Brown, Some one in Europe. Americans, Aliens from outer space? Who knows!!!!!!
Comment by Ron Gobell on November 22, 2009 at 9:26 pm
Well folks it looks like a politician has spotted the obvious at last! I believe most of the UK electorate and most political pundits have understood this to be the situation for years. A bit late in the day but well done that man. The problem is it is all too late, the truth is that our useless politicians have just ignored these legislative anomalies for years. The Lisbon Treaty signing has killed any chance of retrospective legislation to change this at least for the forseeable future. Getting the leading politicians of the political parties to address this, even if they were willing to listen, will be a waste of time. At best all we will see is cosmetic proposals and patronising statements in the press for about six months after the election then nothing.
Disillusioned ex Conservative Party Member
Pingback by Daily Little Law Links » Bleak Flat Legal Blog on November 22, 2009 at 11:10 pm
[...] On the Conservative’s website, Michael Howard tries to scare me out of voting for them by suggesting the repeal of the Human Rights Act. [...]
Comment by Kate on November 23, 2009 at 1:28 pm
I am sick to death of the lily livered, frightened, politically speaking and acting brigade, who feather their nests in quango after quango, watched by our even more impotent political masters. The morality of this country has been allowed to go down the filthiest diriest drain without anyone seriously trying to stop it. Brussels and the EEC don’t give a dam about us other than what they can make us do which we do not want to do whether it be via the HR Act or other nonsensicle dross that it leeches out every day.
Get a grip stop trying to appease everyone but the British people, give us back our country, our way of life and our known independent humanity. We do not and never have need to be dictated to by others as to the best course of action by our judiciary and our lawmakers.
You have a great chance to become a great Conservative Party again by taking on board what the electorate want, not what you want them to want. We need firm old value Education and Laws even if they are draconian to drag us back from La La Land where we currently are.
We are bust, immoral, on our knees and you lot at Central House are accepting people who have admitted to being immoral, lying even scandalous to represent us. Shame on you.
Comment by Mark Higgins on November 23, 2009 at 3:30 pm
This is an excellent point very well-made in your speech last Wednesday. The problem, I think, is this: prior to the coming into force of the Human Rights Act we all knew where we were with judicial review. Decisions could be reviewed if they were illegal (if, for instance, the authority making them never had the jurisdiction to make them in the first place), irrational (so unreasonable that no reasonable authority would have reached the same conclusion), or procedurally improper (made, for example, by a biased decisionmaker). All right, this is an oversimplification of the prevailing wisdom back then, but it is more or less accurate. It was relatively easy to slot judicial deference to parliament into that framework. Judicial review cases were, relative to today, quite small in number but more focused and more easy to reconcile with the constitutional balance.
Since the inception of the Human Rights act there has been an avalanch of decisions made by the Administrative judges of the High Court, the appellate courts and the House of Lords. The Supreme Court has only been in existence one month and yet it took them only two weeks to give judgment in a judicial review action. This is because convention rights are so broadly framed, and strasbourg jurisprudence so wide-ranging, that it is possible to argue the Human Rights Act as part of your claim in a vast array of areas of law. The obligations imposed on the courts by the Act, whilst stopping just short of the colloquial “striking down” of primary legislation, require all but that step. Is it any wonder that judicial deference to the legislature is lost in that exercise? is it any wonder that judicial review appears so much more intrusive when parliament says one thing, the common law another, the strasbourg courts a third, with the courts left to try and reconcile all three?
The problem is that the Convention created rights in abstracto. With the unbalancing of our constitutional makeup brought about in large part by the act, we are treating them as rights in concreto, by reason of which judicial review can know no bounds. This is yet another example of this wretched government neglecting constitutional, boring topics for the more cool and fashionable issues. We need a Conservative government to redress this balance, rigidly define the position of strasbourg jurisprudence in our constitutional makeup and rediscover our own allegiances to the common law which should be the most effective guarantor of our rights and fundamental freedoms. Of course, Lord Mustill is right when he says that parliament also needs to be more effective in holding the government to account, so as to decrease the need for judicial activism.
Comment by Lee on November 23, 2009 at 3:40 pm
The irony is that it was Michael Howard who removed one of the oldest British rights: the right to silence in his Criminal Justice and Public Order ct 1994. I hope this Bill of Rights will strengthen the protection of civil liberties in this country, not weaken it.
Comment by Dorothy Wilson on November 23, 2009 at 4:00 pm
Ian McCallum is wrong. We do have some bargaining power within the EU – and a great deal. It is our contribution to the EU budget. If they want our money, we get our concessions.
And note to Michael Howard and the Conservatives. can we also please have a Bill of Responsibilities. And can that please include a clause that the party of government should – by law – be required to fulfil the promises made in the manifesto on which they were elected.
Pingback by Michael Howard on “repatriating” human rights on November 23, 2009 at 4:31 pm
[...] law rather than the eccentric views taken by the wilder Eurosceptic fringe. So I read with interest his post on the Blue Blog about replacing the Human Rights Act with a “British Bill of Rights”. This inchoate [...]
Comment by Val Duncan on November 23, 2009 at 7:38 pm
We HAD a British Bill of Rights… and Habeus Corpus… and Magna Carta… until Blair threw them in the bin to serve his EU masters. We HAD good and enduring Treason Laws until Blair threw them in the bin to serve his EU masters. If he hadn’t he could have been up on a charge of Treason quick sharp…. enforcing hundreds (if not thousands) of EU laws BEFORE the Treaty of Lisbon was even signed. Dragging this country (oops, STATE) into an illegal war on the lie of WMD!
Brown didn’t even have the courage to sign the Lisbon Traty along with the others… he sneaked into another room when they all left… now tell me he didn’t KNOW it was unlawful or even Treason to sign away our sovereign rights without the authority of the people?
And hey… he’s going the whole hog and changing the oath of the civil service… MI5, MI6 and god knows what else. It no longer includes… to serve the CROWN… it includes… to serve the STATE!
Which State, one may ask? Why, the EU of course.
Well, if Europe insists on their Human Rights Act… where is the inquiry into the Labour abuse of OUR Human Rights? Or do the people of Britain not qualify as being HUMAN?
Comment by Christopher Gaskell on November 23, 2009 at 8:05 pm
I don’t want to “colour” this comment by adding by own views; I just want to record my total agreement and support to what Michael Howard says here.
Comment by R G Counsell on November 24, 2009 at 9:39 am
Just to say how badly we and my friends feel about all promises made, but rarely kept by our party, the list is to long and come the election will NOT vote, the FIRST time in 50 years, well done the conservative party 2009.
Comment by Doug Prewer on November 25, 2009 at 6:06 pm
Give us back our hard won rights, this nation over several decades slowly wrested power from the state in the form of Magna Carter, no imprisonment without charge ie “happeus corpus” (sorry my spelling) open Coroners Courts etc etc the list we have now lost is endless. We need to pull out of The Lisbon Treaty Quote “Any member state may decide to withdraw from the Union in accordance with its own constitutional requirements.”
The Treaty goes on to set out, for the first time, the process a member state would follow if it chose to leave the EU.
Polls always reveal a large body in favour of withdrawal.
Comment by Mark Barber on November 28, 2009 at 10:20 am
Why should we do anything at all?
There is no reason that a ‘British’ bill of rights would be any better or worse than a European one. Lawyers are earning far too much already from the plethora of laws already in existance.
Do away with it altogether if you trust the politicians or stick with what you’ve got if you don’t. Just because it is European doesn’t mean it is wrong.
Comment by Peter Stewart on November 29, 2009 at 7:43 am
WE MUST REPLACE THE HUMAN RIGHTS ACT WITH A BRITISH BILL OF RIGHTS
(A translation into plain English by Peter Stewart – 20 years a loyal, dedicated Conservative activist – 15 years a loyal, dedicated UKIP activist)
Paragraph 2
QUOTE (Michale Howard): “One of the biggest threats to the democratic authority of Parliament and Government has come from the judges.”
MY TRANSLATION INTO PLAIN ENGLISH: The biggest threat to the democratic authority of Parliament and Government comes from the EU which now controls our judges and Parliament.
Paragraph 3
QUOTE (Michale Howard): “Over the past quarter of a century, we have seen a steady shift in power to the courts. To begin with, we saw an expansion of the power of the courts to review the exercise of power by the Executive. Traditionally, this power was exercised with restraint, but the courts no longer feel so constrained.”
MY TRANSLATION INTO PLAIN ENGLISH: “Since 1972, when Conservative policy shifted to support the annexation of the UK by the EU, we have seen a steady shift in power to the EU. To begin with, we saw an expansion of the power of the EU to review the exercise of power by the Executive. Traditionally, this power was exercised with restraint, but the EU no longer feels so constrained.
Paragraph 5
QUOTE (Michale Howard): “Ministers and MPs can be booted out at the next election; judges cannot.”
MY TRANSLATION INTO PLAIN ENGLISH: “Ministers and MPs can be booted out at the next election; the EU which controls our judges – cannot.
Paragraph 7
QUOTE (Michale Howard): “…who should be responsible for striking that balance: elected MP’s or unelected judges? On terrorism, Parliament twice, after great debate, reached its view. Yet twice the judges have held that Parliament got it wrong. In doing so, they were not seeking to deliberately challenge the supremacy of Parliament, but doing what Parliament had asked them to do.
MY TRANSLATION INTO PLAIN ENGLISH: “… who should be responsible for striking that balance: elected MP’s or judges controlled by the EU? On terrorism, Parliament twice, after great debate, reached its view. Yet twice the judges who are controlled by the EU have held that Parliament got it wrong. In doing so, they were not seeking to deliberately challenge the supremacy of Parliament, but doing what the EU had obliged them to do.
Paragraph 9
QUOTE (Michale Howard): In his recent speech, the Director of Public Prosecutions took a different view, yet he failed to engage with this crucial argument. What he needed to do, but didn’t, was to justify the transfer of responsibility for balancing competing rights from elected politicians to unelected judges.
MY TRANSLATION INTO PLAIN ENGLISH: “In his recent speech, the Director of Public Prosecutions took a different view, yet he failed to engage with this crucial argument. What he needed to do, but didn’t, was to justify the transfer of responsibility for balancing competing rights from elected politicians to judges who are controlled by the EU.
Paragraph 10
QUOTE (Michale Howard): “The DPP suggested the Supreme Court might lead to a constitutional court. Yet in other jurisdictions where courts have a political role, the political backgrounds of candidates for judicial office are scrutinised. I do not think we want to go down that road, but if judges are to continue to make what are in effect political decisions, people will be increasingly interested in the political background of judges.
MY TRANSLATION INTO PLAIN ENGLISH: “The DPP suggested the Supreme Court might lead to a constitutional court. Yet in the EU where the European Court of Justice has an overt political role under the various EU treaties ratified by Conservative governments since 1972, the political backgrounds of candidates for judicial office are scrutinised to ensure pro-EU credentials. I do not think we want to go down that road, but if judges are to continue to obey EU law, people will increasingly question the political background of Conservative MPs who still want the EU to govern us.
Paragraph 11
QUOTE (Michale Howard): “I hope that David Cameron renews the efforts of the last Conservative Government to persuade the European Court of Human Rights to increase the extent to which it respects the right of member states to decide these matters themselves.”
MY TRANSLATION INTO PLAIN ENGLISH: ““I hope that David Cameron continues to crawl on his knees like the last Conservative Government did to go through the motions for the benefit of Conservative voters, of persuading the European Court of Human Rights to increase the extent to which it respects the right of member states to decide these matters themselves.”
Paragraph 12
QUOTE (Michale Howard): “David Cameron proposes to replace the Human Rights Act with a British Bill of Rights; I hope it will restore responsibility for this balancing act to politicians that the public can elect or boot out as they see fit.
MY TRANSLATION INTO PLAIN ENGLISH: “David Cameron proposes to replace the Human Rights Act with a British Bill of Rights; Fat chance!
QUOTE (Michale Howard): “These matters do not often hit the headlines, but they are fundamental to the rights and freedoms of the British people. Parliament’s ability to defend those rights has been seriously weakened, and I hope that the next Government will be able to redress the balance.
MY TRANSLATION INTO PLAIN ENGLISH: Thanks to EU persuasion, these matters do not often hit the headlines, but they are fundamental to the rights and freedoms of the British people. Parliament’s ability to defend those rights has been almost destroyed, and I doubt very much whether the next Government will have the guts to redress the balance.
Comment by david peacock on December 12, 2009 at 6:51 pm
What sense this man has
Comment by Richard Aitkins on December 12, 2009 at 8:07 pm
I want to see not only a Bill of Rights, but also a properly written constitution. I’m fed of of hearing about how our “flexible constitution has served us well”. What it actually means is that our political masters don’t have a set of rules to abide by.
It would put a stop to a lot of the ducking and diving politicians get up to. It would also enshrine the powers we lend to the state which couldn’t be surrendered without the say so of the people.
Comment by John Smith on January 13, 2010 at 2:20 pm
As you ducked out of giving us a referedum on E.U. membership. Your only course of action now (if elected) is to tell Europe that we are implementing our own human rights act and ditching theirs If they squeal just withhold our contribution. What can they do ? invade us ? take us to court ? They won’t do the first and just ignore the latter.
Comment by Maria on March 20, 2010 at 2:58 pm
I don’t believe this is going to achieve anything, I really believe the human rights act does alot for those in a vulnerable position. Most importantly this document holds the source of OUR FUNDAMENTAL rights, it protects are liberties. Conservative have got it wrong on this one. Our membership in the EU is much more positive than people think, we have more economic security and flexibilty. Taking us out of the European Convention on Human Rights as enacted by the Human Rights Act will surely jeapordise our standing in the community. We have only to lose out if this policy goes ahead.