Michael Howard: Judges must bow to the will of Parliament

[T_i_B]

It appears that "Judicial activism" is the latest Republican talking point to cross the pond. It also appears that the Tories are none too keen on the Human Rights Act. Make of this what you will.

http://www.telegraph.co.uk/opinion/main.jhtml?xml=/opinion/2005/08/10/do1002.xml&sSheet=/portal/2005/08/10/ixportal.html

Given that judicial activism seems to have reached unprecedented levels in thwarting the wishes of Parliament, it is time, I believe, to go back to first principles. The British constitution, largely unwritten, is based on the separation of powers. Ever since the Glorious Revolution established its supremacy, Parliament has made the law and the judiciary has interpreted it.

As Lord Reid, a Law Lord from 1948 to 1974, explained in 1969: "It is often said that it would be unconstitutional for … Parliament to do certain things, meaning that the moral, political and other reasons against doing them are so strong that most people would regard it as highly improper … But that does not mean that it is beyond the power to Parliament to do such things. If Parliament chose to do any of them, the courts would not hold the Act of Parliament invalid."

But the courts have long had the task of deciding what an Act of Parliament actually means - and have frequently decided that it doesn't mean what the Government claimed or thought it meant, as I know from my time as Home Secretary. They have also been able to decide that ministers have acted unreasonably in exercising a discretion given them by statute.

The difficulty we now face is that the Government has invited the judges to do precisely what Lord Reid said they couldn't do. The Human Rights Act, for example, gives the judiciary the authority to consider whether an Act of Parliament is proportionate to the objective it is intended to achieve - drawing them directly into political controversy.

[muriel_volestrangler]

1. The problem with Parliament being 'supreme'

is that the Lords are still unelected, while the first past the post system hands a Commons majority, and thus the executive, to a party with a minority vote. Without a judiciary trying to balance new laws against basic precedent, our democracy could easily become a tyranny - not of the majority, but of a minority.

Without a written constitution, judges have to see if the new laws are compatible with existing ones. If Howard doesn't like the Human Rights Act, then he should explicitly campaign to abolish it. There are occasions when I wish the Conservative Party would actually try to live up to its name. Right now, he's an anti-Corporal Jones, running round shouting "Panic! Panic!". A conservative ought to be Sergeant Wilson.

[LeftishBrit]

2. Absolutely frightening!!

If ever applied in the UK, this attitude could be even scarier than in America, because (a) we have no written constitution; (b) the American system, at least in theory, makes Congress independent of the President: the President is not leader of his party in Congress, nor is his party necessarily the dominant one in Congress. In Britain, the PM is leader of his/ her party which is dominant in Parliament; so that 'supremacy of Parliament' really means 'supremacy of the Prime Minister'- a single individual.

We do NOT want an elected-dictator PM to have the power to control judges!!!

Fortunately, Howard is on the way out.

[Anarcho-Socialist]

3. I would expect this sort of nonsense

from a Hurrah-Henry "New Labour are communist" Tory Backbencher and not from its leader. This only further confirms to me that the Tory Party in its current ideological incarnation is dying.

[sweetheart]

4. And the tory party crumbles in to dust

Losing elections just isn't enough for howard, he's bent on destroying
any hope of tory wins for 20 years. I can only toast his great success
in this endeavour, since the great Clarke and his wiser contingent have
been sidelined, the only hope of the british people, is the total
annihilation of the tory party that it never return to haunt the living.

[T_i_B]

5. Guilty! Senior judges accuse politicians over terror laws

Wrangling over jurisprudence eh?

http://news.independent.co.uk/uk/legal/article305157.ece

Britain's most eminent judges have warned politicians that they will fight any move to undermine their independence, after being accused of thwarting moves to fight terrorism. In a stark warning, the country's senior legal figures warned of a backlash from the courts - and declared that diluting the powers of the judiciary will undermine the basis of democracy.

Their uncompromising stance comes after a series of clashes with the Government and opposition MPs. Yesterday, Michael Howard, the Tory leader, accused judges of "aggressive judicial activism" and of blocking the will of MPs over the fight against terrorism. Tony Blair recently warned judges he will renounce part of the European Convention on Human Rights and have "a lot of battles" with courts if they block the deportation of extremists.

The judges reacted angrily to the combined force of politicians' criticism, calling Mr Howard's foray into the debate ill-conceived and populist. Lord Ackner, a former law lord, accused Mr Howard of going too far. He added: " He is jumping on the bandwagon."

Senior judges also told the Government they will fight "root and branch" any move to undermine their independence and warned MPs that, if they put pressure on courts to abandon independent judgment to do their bidding on terrorism, the move would backfire.