I was at a talk last night in the LSE
given by Lord Woolf, Former Lord Chief Justice of England and Wales, and replied to by Nicola Lacey of the LSE, and Michael Smyth of Clifford Chance. The topic was "Democracy and the Rule of Law". There were some interesting points made....*Lord Woolf
intoned that it was "no longer wrong to say that judges from time to time make law" - a statement that will no doubt disappoint those who oppose judicial activism. He went on to note that the constitutional arrangements of the UK depended on a consensus between Government and the judiciary on their respective roles. He believed that "observance of the rule of law is becoming as powerful a concept as democracy".
He cited three elements of the UK constitutional order as recognisably limiting the sovereignty of Parliament: (1) the European Community Act of the 1970's, providing for accession to the EC (now EU), (2) the Human Rights Act 1998, and (3) devolution.
The first of these is unsurprising. The second two are noteworthy however: the Human Rights Act, we were told (and remain to be told) does not undermine parliamentary sovereignty. Yet this Former Lord Chief Justice, who held office as recently as last July, believes it does so. Secondly, he noted the need for a tribunal to decide if a matter is devolved or not (i.e. the role of the Federal Supreme Court in the U.S.), and must have seen some judicial capacity in this regard (my inference
). Thus, he clearly views the recent developments as seriously
strengthening the hand of the judiciary in the U.K. constitution.
He noted the importance of Jackson v Attorney General
(the fox-hunting ban case), a "remarkable case", wherein the judiciary, he claimed, were called to define the rightful role of the House of Lords. When put in this light, the case was indeed a high point in judicial power in the U.K.
He finished by noting that the Concordat (an agreement between himself, on the part of the judiciary, and Lord Chancellor and Secretary of State for the Department of Constitutional Affairs, Lord Falconer on the part of the executive, defining the role of the judiciary in Britain's evolving constitution), and the Constitutional Reform Act 2005 which sprung from it, represented the "new consensus" upon which Britain's Constitution was now based.
In response to a question from a BBC Website
reporter on whether Blair's talk of "changing the rules of the game" meant that democracy could change the rule of law, he said the tradition of mutual repect [between Government and judiciary] was important, and judges should avoid conflict unless it was essential to do justice in the case in front of them. If it was essential however, they should do justice and risk conflict. He noted that ouster clauses (in the context of SIAC) were "an overt challenge to the rule of law".
All of this was very interesting, especially as I attended while in the middle of reading Conor Gearty's wonderful Principles of Human Rights Adjudication
* The opinions and quotes here are based on my notes from the evening. While every effort has been made to reproduce accurately and without error the words of the speaker, in the absence of an official transcript, they should not be taken as a definitive record of events. Any error will be corrected if it is brought to my attention.