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Legal Personnel and Access to Justice
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Legal Personnel and Access to Justice
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Legal Personnel and Access to JusticeJudges/The Judiciary
Separation of powers.
Roles of judges:
In statutory interpretation.
Doctrine of precedent – do judges make law?
Judicial ‘activists’?
Impact of the HRA 1998.
A ‘whole new layer of authority’.
‘Interpretative obligation’ under s 3 of the HRA 1998.
‘Fury over ‘out of touch’ judges (Daily Mail, 4th November 2016).
‘Enemies of the people’ (Daily Mail, 4th November 2016).
Political Questions
R (on the Application of Miller) (Appellant) v Prime Minister (Respondent).
‘It is important to emphasise that the issue in these appeals is not when and on what
terms the United Kingdom is to leave the European Union’ – para 1.
‘…although the courts cannot decide political questions, the fact that a legal dispute
concerns the conduct of politicians, or arises from a matter of political controversy,
has never been sufficient reason for the courts to refuse to consider it’ – para 31.
‘…It is their particular responsibility to determine the legal limits of the powers
conferred on each branch of government, and to decide whether any exercise of
power has transgressed those limits. The courts cannot shirk that responsibility
merely on the ground that the question raised is political in tone or context’ – para
39.
Paul Dacre, 5th October 2019 – on the Miller/Cherry Case 2019 in the Spectator.
Judges cannot be neutral, especially on matters such as Brexit.
‘Judges are just part of a great stitch-up by an arrogant ruling class determined to
reverse the referendum and ignore the sovereignty of the people’.
Jonathan Sumption (formerly Lord Sumption).
Judges as judicial activists?
Most critical of what he sees as the expanding role of the courts.
In his Reith Lectures, he argued that the judiciary have been increasingly performing
an undemocratic, quasi-legislative role.
, Lady Hale: Law and Politics – A Reply to Reith.
‘…he (Jonathan Sumption) ignores the subtlety of the Human Rights Act model
which tries hard to accommodate these difficulties. The courts have to operate the
Human Rights Act – they are only doing what Parliament has told them to do. This
inevitably involves making these sorts of judgements in real cases involving real
people. The courts would not be doing right by those people if they failed to
adjudicate upon their cases. We all find this uncomfortable in some contexts –
especially welfare benefits – and a proper degree of restraint when dealing with
government policy decisions is indeed appropriate. But if Parliament does not like
what the courts have decided, in this or any other context, it can always overturn it’
– p12.
A v Secretary of State (2004) UKHL 56 (aka Belmarsh 9 case).
Anti-Terrorism, Crime and Security Act 2001.
Human Rights Act 1998 (Designated Derogation) Order 2001 (SI 2001/3644).
Article 5: Right to Liberty and Security – ‘Everyone has the right to liberty and
security of person. No one shall be deprived of his liberty save in the following cases
and in accordance with a procedure prescribed by law…’
Article 14: Prohibition of Discrimination – ‘The enjoyment of rights and freedoms set
forth in this Convention shall be secured without discrimination on any ground such
as sex, race, colour, language, religion, political or other opinion, national or social
origin, association with a national minority, property, birth or other status’.
Article 15: Derogation in Time of Emergency – ‘In time of war or other public
emergency threatening the life of the nation any High Contracting Party may take
measures derogating from its obligations under this Convention to the extent strictly
required by the exigencies of the situation, provided that such measures are not
inconsistent with its other obligations under international law’. ‘No derogation from
Article 2, except in respect of deaths resulting from lawful acts of war, or from
Articles 3, 4 (paragraph 1) and 7 shall be made under this provision.
The case concerned the indefinite detention of foreign prisoners in the United
Kingdom prison ‘Belmarsh’. The prisoners were held without trial under section 23 of
the Anti-Terrorism, Crime and Security Act 2001.
This decision and the subsequent detentions were challenged at court in terms of
their compatibility with the aims of the European Convention on Human Rights.
The original case was brought by 9 individuals who were threatened with
deportation without trial on the basis that there was some evidence that the
individuals posed a national security threat. The 9 challenged this deportation
decision of the Special Immigration Appeals Commission.
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