The House of Lords (the Lords of Appeal in ordinary, functioning as the English court of Final Appeal) today held that the detainment of several suspected terrorists without trial was a breach of Human Rights.
Fair enough, the House of Lords has the power to pass a declaration that a statute is incompatible with the ECHR, this is not an over rulling of the legislation (as much as many judges would like it to be) because the courts don’t (rightfully so) have that power - it’s known as the Legislative Supremacy of Parliament or rather the “elected officials are elected and you are not” rule. In fact this (the power to issue the declaration of incompatibility) is a principle of modern law which largely came about in one of the biggest judicial power grabs in history following the case of Factorthame (which I shan’t go into because I don’t want to write a long post).
Anyhow, what is astonishing is the following sentence from the Times report:
“They also found that the Government had been wrong to opt out of Article 3 of the European Convention on Human Rights, guaranteeing rights to a fair trial.”
I can’t even begin to explain just how wrong that is and just how unconstitutional such a finding would be. I’m hoping this is just a national newspaper making a hash of their case reporting for the purposes of informing the layman because otherwise any principles of parliamentary supremacy have just been thrown out of the window by the House of Lords.
The courts derive the power for their new effective Human Rights mandate from the United Kingdom’s ratification of certain sections of the European Convention on Human Rights, it is on these not entirely steady grounds that they have assumed a great deal of power to create a jurisdiction that previously did not exist. However the decision of the crown as to which sections of the ECHR to accept is one that was taken by the crown and one which the House of Lords has absolutely NO power to refute or disallow. This is like a footballer getting up and red-carding the referee.
The sad thing is I wouldn’t honestly be surprised if the House of Lords had the gall to issue such a judgment. Judicial power in England has been creeping up in the past decades on the back of Europe, I hope that Clarke’s defiance marks the tide turning back on the judiciary.
Later
John
Posted by John Swaine at December 16, 2004 11:19 PM | TrackBack