Last Thursday, the House of Lords held a wide-ranging debate on the British judicial system. I won’t bother summarizing it, but I will make a few general observations:
- It was interesting to hear a number of peers (including Lord Woolf, a former Lord Chief Justice) criticize the current Lord Chancellor, Chris Grayling, for being too partisan. As Lord Ramsbotham said, “[i]t is worrying because, instead of the Lord Chancellor seeming to resist any failure to observe the rule of law, the breaches of the rule of law seem to be coming from the man who is responsible for the rule of law (HL Deb, 10 July 2014, col. 353).” I’ve already blogged about why the Lord Chancellor/Secretary of State for Justice combination is problematic, and seeing these respected individuals voice their concerns gives me hope that the status quo might change.
- As one might expect, Lord Lester of Herne Hill was keen to play up the role of the European Convention on Human Rights. He claimed that, if Britain were to withdraw from the ECHR (as some politicians have threatened to do), it would weaken the protection of British rights in British courts, and “[t]here would be no redress if, for example, Parliament enacted a racist statute depriving British black or Muslim citizens of the right to vote (HL Deb, 10 July 2014, col. 337).” I found that statement a bit facile. Leaving aside the sheer improbability of such a law, Parliament is ultimately accountable to the electorate, and a government that enacted such an outlandish statute would sooner or later be punished at the ballot box. One might be tempted to argue that the present human rights law would provide a speedier remedy, but I’m not sure that is actually the case. British judges can’t strike down legislation, even if they think it’s incompatible with the ECHR, and the European Court of Human Rights can’t really enforce its judgments, as the ongoing saga over prisoner voting vividly demonstrates. In general, the idea that the British people need the EU to protect them strikes me as absurd.
- Many peers expressed concerns over Part 4 of the Criminal Justice and Courts Bill currently before the House of Lords. Clause 64 introduces a new test for judicial review applications under which the High Court must refuse to grant relief “if it appears to the court to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred.” Chris Grayling argues that the judicial review system is currently being abused, citing the case of R (on the application of the Plantagenet Alliance) v. The Secretary of State for Justice and Others ([2014] EWHC 1662) as a particularly egregious example. While cases like this can be annoying, I think the government is in danger of throwing the proverbial baby out of with the bathwater. Lord Woolf was right to stress that the absence of an entrenched constitution backed up by a constitutional court means that the public needs to have some robust mechanism for holding the executive and public bodies to account. “Judicial review may at times be inconvenient to the Government but it achieves better administration, which benefits the Government. It is their task to accept that it is a critical part of our society (HL Deb, 10 July 2014, col. 332),” he said. His concerns were echoed by other legal experts, including Lord Brown of Eaton-under-Haywood (a former Lord of Appeal in Ordinary and Justice of the Supreme Court), Lord Pannick, and Lord Marks of Henley-on-Thames (both distinguished QCs). The fact that so many crossbenchers spoke out against the government’s proposals suggests that they might be stripped from the bill during its progress through the Lords. If that happens, the bill might face protracted ‘ping pong’ as the two Houses try to thrash out a compromise.
A Venerable Puzzle 