CIVITAS - The UK courts are on an 'expansionist binge' which must be checked
20 Mar 2015 11:30 AM
The judiciary's use of human rights law to meddle in policy decisions amounts to 'denial of democracy', says barrister.
'Supine' governments have lacked the courage to stand up to the courts' repeated power grabs.
Strict ground rules should be introduced for judges to follow on the application of the human rights convention.
The Problem with Human Rights Law: Is it out of control? Who is responsible? What is the solution? can be read in full here. Hard copies are available to journalists on request.
The Human Rights Act must be reformed to prevent the judiciary encroaching any further into areas that should be left to the government and MPs, a new Civitas publication argues.
Barrister Michael Arnheim says clear limits must be imposed on the ability of judges to interpret and extend the scope of the European Convention on Human Rights in UK law.
He accuses the domestic courts of being on an "expansionist binge" which has resulted in the convention being used to challenge the will of parliament on issues ranging from control orders to prisoner voting rights.
Arnheim says it has been a mistake to assume that the European Court of Human Rights in Strasbourg has been responsible for this mission creep. Responsibility rests instead with the UK judiciary, which has been too willing to go along with the European court's decisions - even though it does not have to.
"Critics are too quick to blame the European Court of Human Rights for the expansion of the scope of the convention rights, when the evidence shows that it is actually the UK domestic courts which are largely responsible for this, together with a supine attitude on the part of successive British governments," he writes.
"The domestic courts are on an expansionist binge, which has never been checked by the government or parliament. Continued failure to check this development will result not only in a serious weakening of national defences against terrorism and illegal immigration, but will also amount to a denial of democracy.
"Besides failing to check the judiciary's arrogation to itself of more and more powers, the government has not even tried to counter the increasingly vociferous arguments advanced in favour of this development."
The role of the judiciary
In The Problem with Human Rights Law, Arnheim suggests UK domestic courts tend to "trot along with the Strasbourg line" because it is "politically correct".
"More and more English judges are now starting to pooh-pooh the age-old British constitutional principle of the sovereignty of parliament and the rule that legislation and policy decisions are no-go areas for the courts," he writes.
There is also confusion about the role of the Strasbourg court and the human rights convention in UK law. The Human Rights Act says the UK courts should "take account of" Strasbourg's decisions - not follow them.
Arnheim says there is also a "failing to recognise that human rights cases concern human rights on both sides.
"National security and the public interest actually refer to the human rights of thousands or even millions of individuals," he writes.
"Preventing the government from detaining or deporting potentially dangerous individuals may result in the violation of the individual rights to liberty or even to life of thousands of law-abiding citizens. And this needs to be spelt out in each and every relevant case."
Arnheim urges against the repeal of the Human Rights Act, which plays an important role in controlling the operation of the convention in the UK.
But he says it should be amended to ensure the convention is used as parliament intends and not to thwart the government on issues that frequently concern national security.
On the Human Rights Act, Arnheim proposes:
• Retitling it the Human Rights and Responsibilities Act, and introducing a list of responsibilities by which people should be expected to abide;
• Repealing Section 3, which says legislation must as far as possible be "compatible with the convention rights", and Section 6, which says it is "unlawful for a public authority to act in a way which is incompatible with a convention right";
• Introducing new sections laying down clear ground rules for the courts to follow in applying the convention;
• Setting up parliamentary machinery to take over from the courts any changes to human rights law.
Arnheim also calls for reform of judicial review and Section 3 of the Constitutional Reform Act 2005, both of which have been used to increase the judiciary's sphere of influence.
"In the past half century or so the courts have encroached more and more on the domain of the executive government - and even on that of the legislature, parliament. Successive governments have lamely stood by and watched while the courts have usurped powers that did not belong to them."
The Problem with Human Rights Law: Is it out of control? Who is responsible? What is the solution? by Michael Arnheim is published by Civitas on Friday, March 20. The full text can be accessed here. Hard copies are available to journalists on request.
Dr Michael Arnheim is a practising London barrister and sometime fellow of St John’s College, Cambridge. He has written 15 published books to date, including The Handbook of Human Rights Law, Principles of the Common Law and The US Constitution for Dummies.
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