Some important decisions taken by Michael Howard when he was Home Secretary were overturned by judges who decided that he and his officials had wrongly interpreted legislation that he had piloted through Parliament. In an article for this morning's Telegraph, the Tory leader has hit back against the serious danger of "aggressive judicial activism" and its potential to undermine public confidence in the judicial process.
Mr Howard pins much of the blame for this danger on provisions of Labour's human rights act which have given judges the power to "frustrate Parliament" but he also thinks that UK judges have acted more actively than their counterparts in mainland Europe where legislature-judiciary clashes are much less common.
The post-7/7 environment has caused Mr Howard to write his piece. Noting last December's Law Lords' ruling that it was illegal to detail foreign nationals in Belmarsh jail, he writes:
"The judgment was based on two grounds. First, that the policy was discriminatory because it did not apply to British citizens. Second, that their detention was not a proportionate response to the terrorist threat Britain actually faced. Summing up, Lord Hoffman made the following claim: "The real threat to the life of the nation … comes not from terrorism but from laws such as these." As Tony Blair has said, it is doubtful whether those words would be uttered today."
Repeating his call for the Human Rights Act to be reviewed or repealed Michael Howard also highlights interpretations of the Act which have (1) allowed a man to sue a householder he attempted to burgle and (2) awarded a prisoner access to hardcore porn because of his "right to information and freedom of expression".
It is right that accountable politicians rather than unelected judges should make the law. What this means is that politicians have to careful with the laws they draft. Judges ruled against imprisoning the Belmarsh detainees, not because they were inventing laws, but because the government was in breach of laws it had passed.
Posted by: James Hellyer | August 12, 2005 at 12:55
Well said James!
The problem in England arises from common law - it is developed through precedent and interpretation.
Dare I say that Scottish law, based upon Roman law, is better?
Posted by: Selsdon Man | August 12, 2005 at 16:11