The Conservative Party’s view of the role of the judiciary in politics won’t work in Northern Ireland.
By Christopher Stanley.
This piece looks at the dangers for Northern Ireland of ‘Cummings-Type’ tampering with the British Constitutional settement.
For readers of Village Magazine it is offered as a supplement to my recent post, Contempt in the Rose Garden, on the travels and travails of British Prime Minister Boris Johnson’s eminence grise Dominic Cummings. it is written in response to a paper by Richard Elkins: “Protecting the Constitution: How and why Parliament should limit judicial power” (Policy Exchange Protecting the Constitution, 2 December 2019) which focuses too much on Britain.
In general for Britain read England. This distinction has become particularly acute during the current pandemic crisis. The UK’s devolved administrations reacted in different ways to the control of Covid-19.
This post is offered as a warning to those elsewhere – in Dublin for example – who may be curious about the recent proposals from London to reform the unwritten constitution and to review how Executive authority-power is exercised.
It is a view from that ‘Narrow Ground’ described by Sir Walter Scott in 1825. “I never saw a richer country, or, to speak my mind, a finer people; the worst of them is the bitter and envenomed dislike which they have to each other. Their factions have been so long envenomed, and they have such narrow ground to do their battle in, that they are like people fighting with daggers in a hogshead”. The narrow ground in Northern Ireland is unfortunate but forced on it.
[I] Conservative Manifesto
The problem originated with the Conservative Manifesto published before the recent General Election in the UK which stated:
“After Brexit we also need to look at the broader aspects of our constitution: the relationship between the Government, Parliament and the courts; the functioning of the Royal Prerogative; the role of the House of Lords; and access to justice for ordinary people”.
“We will update the Human Rights Act and administrative law to ensure that there is a proper balance between the rights of individuals, our vital National Security and effective government. We will ensure that judicial review is available to protect the rights of the individuals against an overbearing state while ensuring that it is not abused to conduct politics by another means or to create needless delays” (Conservative Manifesto 2019 page 48).
The Queen’s Speech 1, which gives sovereign expression to the Conservative Party Manifesto and therefore a democratic mandate to govern, states:
“My Government will take steps to protect the integrity of democracy and the electoral system in the United Kingdom”.
In the accompanying Background Briefing Notes, the Cabinet Office expatiates on this statement:
“Examine the broader aspects of the constitution in depth and develop proposals to restore trust in our institutions and in how our democracy operates. Careful consideration is needed on the composition and focus of the Commission” Queen’s Speech 2.
In 2020 Manifesto Commitments are unusually important. This is because many of them are likely to find their way into the Queen’s Speech and from there into action. The current UK government has a majority in Parliament of 80 seats. This constitutes what Lord Hailsham described in 1976 as an Elective Dictatorship. Julian Petley recently commented:
“At a time when the powers of Parliament are under severe threat from government, it might not seem an opportune moment to recall Hailsham’s lecture, but the crucial point to bear in mind is that his phrase refers to the fact that Parliament’s legislative programme is determined by the government, whose bills virtually always pass in the Commons thanks to the majoritarian, first-past-the-post electoral system and the imposition by the whips of party discipline on the governing party’s majority. Thus there is a strong tendency towards executive dominance, and this is compounded by the constitutional inability of the Lords ultimately to block government initiatives. We are closer than ever to Hailsham’s Elective Dictatorship” (30 September 2019).
[ii] The mood is majoritarian
Policy Exchange is ‘the UK’s leading think-tank’. Richard Elkins is Head of the Policy Exchange Judicial Power Project and Professor of Law and Constitutional Government in the University of Oxford. His paper ‘Protecting the Constitution: How and why Parliament should limit judicial power’ has a foreword by former Conservative Home Secretary and Leader of the Oppositon Lord [Michael] Howard of Lympne CH QC in which he offers his own insight into the British constitution by way of a question:
“Who should make the law by which we are ruled? Should it be elected, accountable politicians, answerable to their constituents and vulnerable to summary dismissal at elections or by unaccountable, unelected judges, who cannot be removed?”.
This is a politician’s question in that it points to the questioner’s own answer. Lord Howard then posits a further ‘drain’ on democracy as he sees because not only is law apparently being made by judges, but these judges are applying and making the law from the perspective of the European Court of Human Rights (ECtHR) at Strasbourg through judgments which apply the European Convention on Human Rights (ECHR) and its abstract jurisprudence (obviously infected by pernicious Continental legal systems) as opposed to the pragmatic Common Law.
[iii] That majoritarianism pays little attention to Ireland
Fog in Channel – Continent Cut Off. Irish Sea nowhere to be seen.
Policy Exchange is a (Neo-Conservative) Think-Tank. It is part of The Stockholm Network(‘The Stockholm-Network.org is the leading pan-European think tank and market oriented network’). Policy Exchange therefore articulates and promulgates an ideological position which underscores a political mandate. Who Funds You?
The English constitutional settlement is an unwritten set of conventions, principles and practices forming an ideological construct balancing competing interests. As a constitution that is unwritten, save for the Bill of Rights 1688, there are both implicit and explicit consitutional conventions – for example the contested sovereignty of Parliament.
Note: most European countries are republics, the UK is a monarchy. While European states have citizens, the UK has subjects.
The UK’s constitutional ‘strength’, as commentators such as Dicey noted, is that the system is flexible and can accommodate change. This is an element Elkins relies upon in his demand for constitutional reform to restore Parliamentary/Executive Sovereignty over perceived over-reaching judicial authority.
The English constitutional settlement is not constrained by the codified practices of its Continental neighbours which are reliant upon the interpretative skills of the judges sitting in their Constitutional Courts.
The English institutions that safeguard the constitutional settlement – the Legislature (Parliament), the Executive (Government) and the Judiciary (the Courts and Judges) – have, until now, operated on the basis of mutual ‘respect’ (or tension) in the exercise of their respective powers.
The UK Supreme Court (UKSC) resides on one side of Parliament Square in London across from the Legislature (Parliament) and surrounded by the Executive (Government) in Whitehall.
There is a symbolism in the UKSC, an upstart dating only from 2009, and its location in terms of its independence and separation which is an intense source of irritation to Elkins. He considers the physical separation of the UKSC which used to be the House of Lords within the Houses of Parliament to manifest a dangerous independence which now threatens the integrity of the consitutional balance.
In Wales, Scotland and Northern Ireland the devolved institutions have a constitutional significance which appears lost on Elkins.
The ECtHR, instigated in 1950, represents the judicial institution of the Council of Europe (COE) of 47 members states.
Luxembourg is the seat of the European Court of Justice (ECJ), a creature of the EU, a distinct politicial entity to the COE. As a result of BREXIT, the UK is no longer ‘subject’ to the jurisdiction of the ECJ and the EU Charter of Fundamental Rights. The status of retained EU law, and the judgments of the Court, is uncertain, although not to Elkins who recommends that the UK:
“Review and reform retained EU laws that may confer too much power on domestic judges, and make ministers and Parliament, not courts, responsible for changing retained EU law” (page 8).
One of the rare inter-state cases that came before the ECtHR was Ireland v UK (1977) (the ‘hooded men’ case) on the use of torture by the British state during the internment of Republican and Loyalist paramilitary suspects. It was lawyers from England who were key to the drafting of the ECHR. The irony here clearly annoyed the English politicians and their civil servants when dragged before the ECtHR in Strasbourg.
The Human Rights Act 1998 (HRA98) directly incorporated the ECHR (and its accompanying jurisprudence) into ‘domestic’ UK law only in 2000 whereas before the HRA98, the ECHR was indirectly incorporated into it. The ECHR was not fully incorporated into the UK law and the UK has the power to derogate from aspects of the ECHR. The UK provides one judge to the ECtHR and at least one Registrar to its Registry. The languages of the ECtHR are English and French.
Post-BREXIT, the UK will remain a member of the COE. It will therefore remain, pending the ideas of think-tanks such as Policy Exchange and the sabre-rattiling rhetoric of the Conservative Manifesto 2019, within the jurisdiction of the ECtHR. The ECtHR in Strasbourg will therefore still be a force in Parliament Square.
[iv] Northern Ireland is unique
Westminster, like Dublin, Washington and Brussels, is a political village. It is a long way from Belfast, both geographically and ideologically. Belfast shares important political borders with both Dublin and Washington as much as with London.
In terms of the ‘British’ constitution, Northern Ireland has its particular circumstances which must affect forthcoming constitutional reform. Whether Elkins realises it or not.
Northern Ireland has greatly benefited from economic inward investment from the EU. 55.8% of people in Northern Ireland voted to remain in the BREXIT referendum (those voting to leave being from predominantly Loyalist areas).
The paper which now forms the basis of the cross-party power-sharing agreement in Northern Ireland is called New Decade New Approach and contains the following commitment:
“5.26. An Ad-Hoc Assembly Committee will be established to consider the creation of a Bill of Rights that is faithful to the stated intention of the 1998 Agreement in that it contains rights supplementary to those contained in the European Convention on Human Rights, which are currently applicable and ‘that reflect the particular circumstances of Northern Ireland’; as well as reflecting the principles of mutual respect for the identity and ethos of both communities and parity of esteem”.
Two points on this commitment.
First, 12 years years ago the Northern Ireland Human Rights Commission (NIHRC) presented its Advice on a Bill of Rights for Northern Ireland to the British government. It had been commissioned to provide the British government with this Advice under the Belfast/Good Friday Agreement 1998 and pursuant to the Northern Ireland Act 1998.
The NIHRC consulted widely across Northern Ireland and produced a draft Bill of Rights for Northern Ireland which was ‘ECHR-plus’ meaning incorporating a broad range of socio-econmic and cultural rights. The Advice of the NIHRC was dropped into a circular filing cabinet in Whitehall (NIO Next Steps): “The consultation also demonstrated opposition to a wide-ranging Bill of Rights and support instead for a more limited set of rights that reflected the particular circumstances of Northern Ireland’ (NIO BOR NI).
Second, inscribed within the fabric of the Belfast/Good Friday Agreement 1998, which is an internationally recognised and endorsed peace agreement, is a commitment to human rights:
“Safeguards: 5. There will be safeguards to ensure that all sections of the community can participate and work together successfully in the operation of these institutions and that all sections of the community are protected, including:
(b) the European Convention on Human Rights (ECHR) and any Bill of Rights for Northern Ireland supplementing it, which neither the Assembly nor public bodies can infringe, together with a Human Rights Commission;
(c) arrangements to provide that key decisions and legislation are proofed to ensure that they do not infringe the ECHR and any Bill of Rights for Northern Ireland” .
The Belfast/Good Friday Agreement 1998 is a work in progress, as peace is a process in progress, undermined by political disenfranchisement, a democratic deficit, socio-economic erosion and dissident violence.
This analysis suggests that:
First, the Belfast/Good Friday Agreement 1998 contains a commitment to the ECHR which is most recently articulated as a commitment to a Bill of Rights for Northern Ireland reflecting the particular circumstances of Northern Ireland
Second, the devolved constitutional settlement in Northern Ireland is a delicate work of political pragmatism and brinkmanship with influences being exercised between Belfast/Dublin/London/Washington.
This is the prism through which I read Elkins analysis of constitutional reform from his Dreaming Spires (Oxford) and Corridors of Power (Whitehall). And particularly the Rose Garden of 10 Downing Street.
[v] There is a mover to wrestle apparently unaccountable power back from the Judiciary
Elkins seeks legitimacy for the proposals he advances on behalf of the Policy Exchange by recourse (page 9) to the BBC Reith Lectures delivered in 2019 by Jonathan Sumption and now published as ‘Trials of the State: Law and Decline of Politics’ (London: Profile Books, 2019: see Stanley LSG). Sumption was formerly a judge of the UKSC and was part of the unanimous judgment in Miller (No 1) .
Sumption unwittingly, for one of the cleverest people in the England, has become part of a dangerous narrative around the constitution which seeks to wrestle apparent unrestrained and unaccountable power from the Judiciary back to the Legislature and Executive, in effect to the Government and Civil Service (although not the Civil Service as we understand it but rather a politically correct technocracy of ‘experts’ colonising Whitehall and the Institutions of the Establishment.
In the Policy Exchange Whitehall Reimagined paper, Dame Patricia Hodgson notes in her introduction: “For government to work as is now required, Whitehall needs more access to talent, streamlined processes and the confidence to work closely with outside experts and with political advisers able to provide improved support for Ministers, including Junior Ministers” (page 5).
[vi] Cummings is a champion of taking back such power, using new incomprehensible language and justifications
I have previously commented on this emerging Type of public/civil servant in my piece on Dominic Cummings (Contempt in The Rose Garden).
As I noted there, the Policy Exchange view is that there is a need to “Strengthen the role of specialists in formulating policy and advising ministers” and to appoint “leaders of public bodies whose own culture and values align with government’s strategic purpose for that organisation” because “most or our politics is still conducted with the morality and the language of the simple primitive hunter-gatherer tribe: ‘which chief shall we shout for to solve our problems?’” Delivering Differently a Policy Exchange paper citing Dominic Cummings ‘The Hollow Men, What’s Wrong with Westminster’ October 2014 (IPPR (1) andIPPR (2): ‘the Institute for Public Policy Research, is the UK’s leading progressive think tank’).
It is heartening to see rivalry between ‘progressive’ and ‘neo-conservative’ Think-Tanks.
These ‘new’ specialists from within the statistical-scientific-technological combine are not SPADS, as they are post-managerial-Odyssean Educated. They are synthesisers, unfettered by due diligence, accountability, the Rule of Law and charged sole with bringing forth The Democratic Mandate in an Elective Dictatorship.
As Dominic Cummings wrote:
“Instead of trying to solve problems centrally and manage complex projects, Whitehall ought to reconsider what goals it incentivises centrally while decentralising decisions about methods. Other fields have developed empirical design rules and quantitative models (such as aircraft engineering). Whitehall needs to devise rules that encourage evidence-based policy where feasible and decentralised decision-making as a default mode. It also needs new methods to regulate, monitor, and when necessary intervene in complex systems.” (Dominic Cummings and the Odyssean Project)
Cummings writes and speaks in a ‘new’ language of non-expression to make himself (mis)understood. It is reminiscent of Pier Paolo Pasolini’s analysis of Aldo Moro’s use of language which was described by Leonardo Sciascia in The Moro Affair:
“In Moro’s language – a language that was totally new and yet, on account of its incomprehensibility, able to fill the space from which, precisely in those years, the Roman Catholic Church had removed its Latin” (1987: New York Review of Books, New York) page 18).
For Latin, read Mandarin.
Therefore: “we’re hiring data scientists, project managers, policy experts, assorted weirdos …”. (Cummings Blog)
“My advice to those trying to get things done in Westminster is: focus, ‘know yourself’ (face errors), think operationally, work harder than others, don’t stick to the rules, and ask yourself ‘to be or to do?’”. (Dominic Cummings and the Odyssean Project)
Cummings ignores conventional views of the limitations on advisers’ powers.
SPADS are “temporary civil servants, drawn from outside the traditional civil service structure, and subject to the patronage of ministers for whom they work. In layman terms, civil servants are appointed through open competition and promoted by merit. Special advisers, on the other hand, are appointed personally by ministers, to work for those ministers; when a minister leaves, the spad leaves with them. They may or may not have policy expertise” SPADS.
They are “an additional resource for the minister providing assistance from a standpoint that is more politically committed and politically aware than would be available to a minister from the permanent civil service” We are closer than ever to Hailsham’s Elective Dictatorship.
[vii] Cummings agenda gels with that of Policy Exchange
The Cummings-Odyssean Project of Operational Planning for Governance elides with the Policy Exchange programme to demand both the ‘protection’ of the besieged English constitution and the delivery of the Democratic Mandate.
Elkins enters the opening made by the views of Jonathan Sumption, by stating that “(M)atters have reached the point where Parliament has a responsbility to step in to restore the constitutional balance”.
Because, apparently, the unwritten constitution is out of balance and requires calibration.
The wheels of the constitutional bus need fixing because, according to Elkins, they are out of alignment because the bus has been driven by the unelected judges and weighed down by the heavy baggage of human rights, smuggled into the UK by those unelected judges in Europe, with strange names from foreign places, like the Inns of Court.
I am reminded of Dublin-born Edmund Burke’s speech to the English Parliament on the impeachment of Warren Hastings:
“These gentlemen have formed a plan of geographical morality, by which the duties of men in public and in private situations are not to be governed by their relations to the great governor of the universe, or by their relations to men, but by climates, degrees of longitude and latitude, parallels not of life but of latitudes; as if, when you have crossed the equinoctial line, all the virtues die” (15 February 1788) (Burke).
[viii] European Laws have a tense relationship with English laws but are important in Northern Ireland
On 31 January 2020 the UK left the EU: it did not leave the COE which is responsible for the ECHR and the ECtHR. Until the HRA98 is repealed or revised, the jurisdiction of the ECHR and its court remain a force in the UK.
Further, UK judges are obliged to take account of the jurisprudence of the Strasbourg court and it remains unlawful for a public authority to act in a way which is incompatible with a Convention right (by Section 6 HRA98). In addition, given the nature of the English legal system, it would be impossible for judges to ignore the English Common Law jurisprudence which has incorporated the judgments and jurisprudence of the ECtHR.
Elkins identifies further problems with the English consitutional settlement: a loss of confidence “in our traditional constitution” and “a willingness on the part of some judges – not all – to abandon settled law and take over political questions” (page 9). This identification needs to be broken down into two parts orthere is a dangerous elision.
First, who is this collective ‘we’ in this ‘our’? Does it include those ‘us’ in Aberystwyth, Arbroath and Antrim? – those who inhabit a different constitutional settlement where what happens in Cardiff, Edinburgh and Belfast may mean more than what happens in London?
Second, are the judges actually abandoning settled law and taking over political questions in a burst of judicial overreach backed by abstract notions of rights imported from Europe?
An unexplored aspect of this is the fact that there is more law being made by the Executive often with little or no political scrutiny from the Legislature and by way of secondary or delegated legislation – a point made obliquely by Sumption.
Note Dominic Cummings’ interpretation of the rules of lockdown which he in part drafted: ‘An Example of ‘Excessive Executive Dominance’ which in part is what Cummings typifies: see Jake Hinks Executive Dominance). Odysseus collides with Pericles.
If access to justice – which is a right exercised in an increasingly exclusive sphere – results in litigation over the interpretation of legislation – then judges are placed in the position of being the interpreters of that legislation. Judges do not make law and are resistant to interfering with policy-making including the allocation of resources. The Conservative Manifesto 2019 made a commitment to “access to justice for ordinary people” – access to courts and judges.
Further, judges work (judge) within a formal structure of legal reasoning, interpretation and juridical thinking which is articulated as the Common Law, the order of precedent and the principles of statutory interpretation which includes giving force to the will of Parliament (not the right of the Executive). This is not abandonment of settled law but a tension between Common Law and State law-making.
The Common Law is a ‘living instrument’ and it is widely understood to be able to accommodate many of the rights contained in the ECHR:
“106. This approach was originally adopted in dealing with rights protected by the Convention, at a time when it did not have the force of law and the courts were unwilling to apply any presumption that domestic legislation was intended to be construed consistently with it. Many of these rights had been recognised at common law for many years, in some cases since the famous opening chapter of Blackstone’s Commentaries (“The Rights of Persons”). In Bugdaycay, the House of Lords recognised that a more exacting standard of review was required when the decision of a public authority interfered with a ‘fundamental’ right”. (Pham (Appellant) v Secretary of State for the Home Department (Respondent)  (Lord Sumption)).
In addition, the Common Law can incorporate concepts traditionally within the jursidiction of the ECHR and articulated in the jurisprudence of ECtHR, including proportionality as balanced against reasonableness. Professor Paul Craig, Elkins’ predecessor at Oxford University, noted that in fact proportionality and reasonableness at a certain point merge to become the same thing, depending on the margin of discretion applicable.
Elkins would deplore this development which was welcomed by Lord Kerr in R v Secretary of State for Foreign and Commonwealth Affairs and another  citing the Bugdaycay judgment referred to above:
“where he indicated that, subject to the weight to be given to a primary decision-maker’s findings of fact and exercise of discretion, ‘the court must … be entitled to subject an administrative decision to the more rigorous examination, to ensure that it is in no way flawed, according to the gravity of the issue which the decision determines’”.
Elkins would interpret this as being uncessary judicial overreach into the role of the state in delivering the Democratic Mandate where decision-making should not be subject to amateur judicial scrutiny but rather wielded by ‘experts’ and ‘specialists’. Elkins is keen to defend his position and he elides it directly to the Conservative Party Manifesto 2019 and the Democractic Mandate:
“Nonetheless, any exercise of parliamentary responsibility in this domain will inevitably be criticised as an attack on judicial independence, as the reception of the relevant part of the Conservative Party’s manifesto, and Queen’s Speech, confirms. The criticism is unwarranted and must be firmly resisted” Policy Exchange Protecting the Constitution (page 10).
Elkins’ view of the role of Parliament scrutinisng a constitutional settlement becomes problematic where there is Executive Dominance by unelected and unaccountable ‘experts’ and ‘specialists’ from The Odyssean Think-Tank.
Perhaps this explains why some judges are holding those in power to account by way of the assertion of Common Law rights which are replicated in the ECHR?
From the Northern Ireland perspective perhaps judges there sitting on Conflict-related Legacy litigation are almost every day addressing political questions. As Lord Girvan noted:
“ However, subject to the specific changes introduced to deal with aspects of the past conflict and until further changes are agreed in the political process and given legislative effect, existing principles of law must be applied when dealing with existing disputes in cases raising issues from the past frequently described as “legacy issues.” This application is a case in point. No counsel took issue with the proposition” (Re: Hughes (Brigid) ).
Judges in the UK have limited powers to make orders to compel actions from the institutions of the state but they are fulfilling a role in terms of scrutiny and the allocation of responsibility and accountability. In Hughes Girvan LJ spoke for for victims searching for truth, justice and accountability – in the absence of a state financed, independent and effective human rights complaint mechanism to investigate all Conflict-related deaths. Judges in Northern Ireland have been compelled to judge on questions of policy in the absence of a functioning Executive or Assembly at Stormont (see The Pall is Lifting) and in the absence of consensus on dealing with the out-working of the Legacy of the Conflict.
This situation would be offensive to Elkins. But how else would he audit the scrutiny deficit in matters as grave as investigating Northern Ireland Conflict-related deaths and injuries when confronted with political failure and with demands required by an international peace agreement – and under the ECHR?
[ix] Conservatives consider human rights law is really politics
Elkins might resort to an argument, currently popular within the Conservative Party, that Conflict-related Legacy litigation is what he calls “political litigation”.
‘Political’ litigation is, in the Elkins mindset, a subversion of the ‘classicial’ principles of judicial review and an abuse of the courts by agitating individuals (e.g. Gina Miller) and civil society organisations (e.g. NGOs).
‘Weak’ or ‘Political’ judges are trapped or encouraged into criticising government policy by challenges brought by way of judicial review. Judicial review therefore, following Elkins reasoning, becomes a route toward political protest against mandated government policy anda means of undermining established constitutional conventions, principles and practices. As Elkins writes “Many in public life are increasingly willing to turn to the courts in order to seek political advantage”. These “many” are encouraging and enabling “open judicial defiance of Parliament” which “should be resisted forcefully”.
The irony here, despite the Conservative Party Manifesto’s 2019 pledge to encourage access to justice for “ordinary people” is that:
First, access to justice by way of public-funded litigation is almost non-existent given the attacks on the legal aid budget in the UK and the political pressure upon the Legal Aid Agency (an independent agency of the Executive but within the Ministry of Justice);
Second, legal aid, once a foundation stone of the British welfare state, is now an eroded pebble. This stops the “ordinary person” from challenging the oppressive force of the state;
Third, access to justice is now largely funded by online mechanisms such as Crowd Funding which only fund popular causes;
Finally, access to justice to challenge government policy relies upon the pro bono good will of the British legal profession.
The enabling of what Elkins describes as”‘open judicial defiance of Parliament” has arisen because of ‘political litigation’, the ECHR and its jurisprudence, and judicial overreach lead by the UKSC. Its target is apparently Parliamentary sovereigny – Miller (No 2) for example by “introducing a destablilising confusions about fundamentals”. Elkins therefore suggests the following:
First, relying upon Sumption, there is a need to restrict the scope of judicial review to prohibit ‘political litigation’;
Second, there is a need to reform the UKSC by limiting its jurisdiction to questions ‘of general legal importance’ rather than public importance (whatever that means). Elkins states that “The question to the expansion of judicial power is to restore principled limits not tacitly to legitimate and encourage that expansion by selecting judges on overtly political grounds” (page 19);
Third, there is a need to restore the constitutional balance (Haynes Manual, again) when “The UK’s subjection to the jurisidiction of the ECtHR distorts or system of parliamentary government”. Therefore, because the ECtHR has used the ECHR (‘a living instrument’) to ‘armed claimants to obstruct state action’ (page 21), it must be curtailed – despite the Phampoint that these rights can be found in the Common Law.
Elkins then sets out a programme of reform: “The Government should propose, and Parliament should support and require, a programme of human rights law reform” including “not complying with the ECtHR’s misinterpretation of the ECHR” (page 22)
[x] But judicial powers are necessarily political
“To conclude, I would say that when we hear people ask the question whether a legal test make judges too political, we should query whether that is the right question. Public law more than ever before requires judges to take on the challenge of applying the principles of ‘constitutionalism’ or the ‘rule of law’ to ensure that lawmakers do not use their powers to undermine democracy itself. Judges tread a fine line but we should not shy away from the fact that in one sense at least, judicial powers are necessarily political: they are necessarily political because their proper application ensures the maintenance of freedom that forms the bedrock of a true democracy” Simor.
Here Jessica Simor QC punches a hole in the Elkins position. She throws a spanner into the mechanics of wheel-balancing the broken down bus that is the English constitutional settlement. I would contribute to Simor’s analysis with the following points:
First, Elkins, Policy Exchange, Dominic Cummings and his Odyssean Education Project, all ignore the English constitutional settlement in terms of the UK’s devolved administrations including Northern Ireland and its complex history and cross-border arrangements following BREXIT;
Second, they are part of an Elective Dictatorship the aim of which is to deliver the democratic mandate of the Conservative Manifesto 2019;
Third, they represent an Executive Dominance by ‘experts’ and ‘specialists’ within this Elective Dictatorship. The sanctity of Parliamentary Sovereignty which Elkins claims to want to restore is a chimera. The sanctity is in fact that dominance of the Executive over the redundant legislature (Parliament) and the overreaching judges (Judiciary). It is, of course, the centralisation of power to be exercised by an unelected and unaccoutable few on behalf of their political masters nominally to deliver the Democratic Mandate but in reality to bring forth the Odyssean realpolitik.
Christopher Stanley is a Litigation Consultant for KRW LAW LLP, Solicitors, Belfast