Two tensions lie at the heart of disagreements about the constitution in the United Kingdom. The first is the relation of the state to the nations that comprise it — the territorial constitution, the Union and devolution. The second is the relationship between the courts and what Americans would call the “political branches” — government and Parliament. I can think of no constitutional lawyer who would contest the proposition that the courts in the United Kingdom have become significantly stronger and more powerful than they were — say — twenty-five years ago. It is not only a perfectly reasonable question but, I would argue, it has now become a clearly required question to ask: have they become too powerful and, if so, what should be done about that.
The government’s favourite think-tank, Policy Exchange, is — typically — in the vanguard. It has launched a “Judicial Power Project“, which has already published two full papers and a series of responses. More — much more — is to come. This is a website that all those interested in the British constitution should watch closely. The great Australian expert on the sovereignty of Parliament, Jeffrey Goldsworthy, launched the project in March in a lecture in which he set out both how and why judicial power is on the increase, not only in the UK but across the common law world. Last month, Oxford’s John Finnis carried the work forward in a quite brilliant lecture in which he set out five positive arguments and five negative arguments about judicial power. Since then, Mark Elliott and Gregoire Webber have posted valuable critical responses to Professor Finnis’ thesis.
The Judicial Power Project builds, it seems to me, on the sorts of interventions that judges such as Lord Hoffmann and Lord Sumption have made about the proper constitutional role of the judiciary, of the Supreme Court’s proper constitutional relationship with government and Parliament, and of the UK courts’ proper constitutional relationship with the two European courts (of Human Rights, in Strasbourg; and the European Court of Justice in Luxembourg). Among Lord Sumption’s contributions, see here and here; for Lord Hoffmann, see here. The “judicial power” argument runs both more broadly and deeper than debates on whether and how the Human Rights Act 1998 should be reformed, but the future of the HRA is set to feature prominently in this argument for some time to come.
All of these contributions are contested — neither Goldsworthy nor Finnis nor Hoffmann nor Sumption are making claims that all lawyers or all constitutionalists would agree with. But, whether you agree or disagree with the positions staked out by these authors, you surely cannot argue with the proposition that their positions are reasoned, set out with authority, with care and attention to detail, and with respect for those whose views are different.
Sadly, this is not always reciprocated by those on the other side of the argument. There is a shrillness in the voice of much of London’s human rights lobby, and an unwillingness to engage in civil argument, forged in my view out of a mistaken zealousness that the Human Rights Act 1998 is legislative perfection and that those who dare to question it (as Goldsworthy, Finnis, Hoffmann and Sumption do) are somehow warriors on a crusade to destroy our basic freedoms and end the rule of law. Recent tweets asserting that Professor Finnis wishes to “return us to the 1930s” and that he would prefer there to be “no international law” at all are but the latest manifestations of self-proclaimed human rights activists preferring insult to engagement.
I fear that we will hear much more of this in the weeks to come. It is unlikely to be long before the Government publishes its consultation paper on reform of the Human Rights Act. Too many of the leading lights in the human rights lobby have already decided — before any of them knows what the Government is actually going to suggest — that the HRA must be backed at all costs. By all means oppose government policy once you know what it is, but pre-determining the issue and deciding in advance that the government must be stopped is just silly, unless of course your goal is simply to make a lot of noise, draw attention to yourself, and pass up the opportunity actually to take part in shaping policy about how we get the balance right between judicial power in the constitution and the power of government and Parliament.
Getting this right will be every bit as important to the future stability of the United Kingdom as is getting the territorial constitution right. It will need constructive debate and argument — from all sides — rather than idle point-scoring. If that is what Policy Exchange’s judicial power project can provide, we’ll all be in its debt, whatever we think of the Human Rights Act.