Baroness Hale: Human Rights Act hampered by constitutional problems
Guardian: UK’s most senior female judge laments lack of time spent applying essence of the Act
Baroness Hale has made an insightful speech criticising the time spent on constitutional wrangling rather than on the essence of the Act. The Guardian notes: “Lady Hale suggested that the tension between the Government and the courts arising from such cases is preventing judges from doing their job”
It seems a shame that an Act, which appeared to be so clearly drafted and was trying to do such an important but radical thing, has given rise to so many difficult constitutional issues on which we have had to spend so much of our time. Maybe the previous mind-set of the practitioners and the courts is more to blame than Parliament and the Parliamentary draftsmen.
Tan Tench, Olswang, provides a very good analysis of Hale’s speech. I can thoroughly recommend the UKSC | Blog as a first port of call on matters relating o The Supreme Court and the usual high standard is applied in this summary.
Dan Tench writes: “In her conclusion, Lady Hale regrets that the Act “has given rise to so many difficult constitutional issues”, although that was perhaps inevitable. It is pretty clear that she would like the courts to take a bolder line, being prepared where necessary to intervene more and get ahead of the Strasbourg line and simply introduce words into statutes to provide compatibility with the Convention. These would certainly be steps in a radical direction.”
UK bill of rights plan a ‘bad idea’, warns head of European court
Guardian: Senior judge’s remarks that human rights could be hit if act repealed threatens to inflame row over power of Strasbourg.
Plans to create a British bill of rights have been strongly criticised by one of Europe’s most senior judges, in a stance which could create further conflict between the government and the European court of human rights.
Jean-Paul Costa, the president of the court, has said that repealing the current human rights act would be a “bad idea” and could jeopardise the protection given by the European convention on human rights.
“The project of returning the court to British rule is a bad idea,” he said, in an interview with the Guardian. “The human rights act has made a big difference to the protection of rights in the UK. People have started to be acquainted with the European convention on human rights.”
After the second world war there was a clear need to re-build and prevent further European conflict. There can be no doubt that the creation of the European Union has achieved much – but it is equally clear, with the growth of the Union, the different pace of the economies, the problems of the Eurozone and Greece in particular that the road to a European super state has been stalled. The European Convention on Human Rights was largely a creature of British design.
The President of the European court is in danger not only of venturing into areas which should be no concern of the court or the judiciary, but of committing the sin of legal hubris. Lord Hoffmann, a former law lord, said. “It considers itself the equivalent of the supreme court of the United States, laying down a federal law of Europe.” Hoffman added that is also guilty of self aggrandisement.
It also appears that the court is astonishingly inefficient. Justice delayed is justice denied. The Guardian notes: “A number of senior UK judges have voiced strong criticisms of the court, which currently has a backlog of around 120,000 cases – a workload which it is estimated would take at least three years to clear even if no new cases were brought.”
It might be a good idea for Judge Costa to concentrate on his own back yard before he irritates judges, practitioners and commentators in this country further. His remarks and thinking on British plans do not seem to have been fully worked out. Perhaps this is a result of the astonishing backlog of cases? And what is the cause of the backlog? I shall have to look further into that. I assume someone at the ECHR will be prepared to tell me if I telephone and ask politely? I suspect that Judge Costa will be a bit busy preparing his 120,000 judgments or procrastinating with further thoughts on British plans. As the man says, the European Convention gives protection but with a backlog of 120,000 cases, taking three years to clear, it isn’t doing a particularly good job of actually delivering protection. Perhaps I need some alka seltzer – too much acid in the system this morning. Breakfast calls.
While I appreciate the history and the drafting of the relevant law – I am beginning to wonder why we even need a European Court of Human Rights. On the not unreasonable assumption, these days, that all European nations are civilised – why can’t national supreme courts deal with human rights issues in relation to Britain?. If we suddenly find that our Supreme Court runs amok and starts implementing government policy and ignoring the law – which is unlikely – why can’t our Supreme Court deal with all ECHR matters for UK and the same principle for all the other signatories?
European Union Law is, of course, an entirely different basket case.