Wednesday, August 10, 2005

Judicial activism

When in need of a cheap shot for quick political points, blame judicial activism.

Frustrated with the lack of quick fix solutions in the war on terror? Blame it on judges for striking laws down.

Michael Howard, lame-duck Tory leader, has decided to trot out the tired old judicial activism line as he did while he was Home Secretary and in Government in an article for the Daily Telegraph. (Here’s a the complete article.)

His tone was a little more restrained in dealing with the issue on Radio 4 this morning, backing away from the quote “aggressive judicial activism” and emphasising that his point was that the UK Human Rights Act placed a burden on judges, meaning they had to engage in a balancing of individual rights and community interests best left to Parliament. His concern was to open debate on amendment or repeal of the Act.

Put simply, the HR Act gives the UK courts a kind of limited constitutional review function: if judges find a law infringes UK obligations under the European Convention on Human Rights, they can refer it back to Parliament for amendment. In the meantime, the Courts still have to apply it, even if it can't be interpreted so as to be consistent with the Convention.

It’s hard to see how this transfers power to the judges, which is the usual criticism of any proposed bill of rights in Australia. All it gives judges the power to request that Parliament, “Have another go.”

If an Act clearly cannot be reconciled with international human rights, it cannot be struck down on that basis. If it can be interpreted consistently with Convention rights, that is the interpretation that must be given.

Regardless, the courts have never been the mere “interpreters” of parliamentary law, they are there as a check on parliamentary power and especially on ill-thought-out solutions.

Yes, conservatives can now, after the 7 July bombings, beat the courts and libertarians with their own rhetoric of “The real threat to the life of the nation … comes not from terrorism but from laws such as these”, but the law and its guardians should not back away from one of their first functions: to preserve fundamental values even in the face of emergency.

Further, judicial restraints on arbitrary detention are an important part of a successful campaign to counter terrorism. The terrorist recruitment base is always disaffected, radicalised youth. The experience of internment in Northern Ireland, imprisonment with no trial or with decisions on detention made by secretive security tribunals, was that where the wrong people were locked up they were radicalised by that very experience.

The complicity of the legal system in internment was an unmitigated disaster, creating further grievances that helped fuel a terrorist conflict. We should, as a society, be very wary of calls for the courts to give effect to the will of parliament and to exercise restraint in times of national emergency.

This is not to say the court system couldn’t cope with some reform to deal with new situations. Apparently, phone tap evidence is not admissible in British courts. While I can see, in principle, a conflict with the right to silence, that right is already one so heavily qualified as scarcely to be worth the name and I can imagine few citizens having a problem with saying, “Put all the evidence in the ring for a judge and jury and let suspects answer it if they chose.”

Undermining fundamental liberties, such as indefinite detention without due process, however, is another matter altogether, one as likely to fuel problems as quell them.

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