Judges in Britain are not supposed to overrule primary legislation that has passed through a sovereign Parliament. Yet that, on the face of it, is what seems to have happened in the UK Supreme Court’s judgment on Prince Charles’s “black spider memos”. And it is deeply paradoxical that it is Lord Neuberger, President of the Supreme Court, who has committed this apparently unconstitutional act, striking at a core “democratic” principle – that Members of Parliament (albeit a chunk of them unelected) pass laws, not judges.
For Neuberger has in the past expressed fears about the UK Supreme Court becoming a “constitutional court” with a dangerous potential for defying Parliament. In a 2009 BBC interview when he was Master of the Rolls (having refused to continue his role as a House of Lords judge into the new Supreme Court) he talked of the danger of “mucking around” with the British Constitution saying there was a risk “of judges arrogating to themselves greater powers than they have at the moment”. Continue reading
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Note: details of a potential “overhaul” of the Human Rights Act, clause by clause, appear below for those who prefer to get straight to the nitty gritty: “Conservative Rights and Obligations – point by point”
The 2022 Queen’s Speech has underlined the intention of the Secretary of State for Justice, Dominic Raab, to “reform” the UK Human Rights Act with a new British “Bill of Rights” (consultation document here).
It is likely that Raab will craft what he calls a distinctly British version of human rights that swings the legal regime subtly in favour of the executive and public bodies, albeit without seeking to withdraw from the broad obligations of the European Convention of Human Rights.
But whether the changes will be acceptable to the European Court of Human Rights is a moot point. If not, Raab will relish the fight, and will point outthat the court already accepts a “margin of appreciation” for the exercise of human rights in individual countries ie the idea that they might be affected by the history and constitutional outlooks of individual nations and hence are not homogenous across all signatories.
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