London Free Press

January 2, 2001

Judges must be politically accountable

By Rory Leishman -- London Free Press

What are judges for? Conor Gearty, an eminent British constitutional authority, offered some penetrating and original thoughts on this subject in a lecture in London, England that deserves serious consideration both here in Canada and the United Kingdom.

The occasion was Gearty's inaugural lecture as professor of human rights law at London's King's College. He reminded his audience that the British Human Rights Act of 1998, which came into effect on Oct. 2, has worked a veritable revolution in the British constitutional order.

Gearty's colleague, K. D. Ewing, co-author of a standard textbook on constitutional law in Britain, has described the adoption of this legislation as generating "the most significant formal redistribution of political power in this country since (the powers of the House of Lords were curbed in) 1911 and perhaps since (the revolution of) 1688."

At issue is a dramatic surrender of authority by Parliament to the judiciary.

Like the Canadian Charter of Rights and Freedoms, the British Human Rights Act has conferred unprecedented powers on unelected judges to question the wisdom of the law as enacted by elected representatives of the people in the legislative branch of government.

"I have a strong hankering for a very limited judicial function," affirmed Gearty.

He said he would prefer a society, "in which, broadly speaking, the rules are made by representatives, interpreted by the courts and enforced if need be by the executive arm."

Of course, judges in the Common Law tradition have always had a limited rule-making role. But up to now, noted Gearty, "their 'legislative' function has been well camouflaged and in the main (with one or two exceptions, of course) timidly deployed. But what no one could have expected was that the legislative branch itself would invite the judiciary to exercise legislative power of a far more general and pervasive nature than has ever hitherto been countenanced. This is the effect of the Human Rights Act."

Consider the impact of the act in relation to a current issue -- gay marriage. While most British Conservatives hold the confinement of marriage to opposite-sex couples is a demonstrably justifiable legal rule, some leading Labour MPs insist this rule constitutes an unjust violation of the right of homosexual couples not to be discriminated against on grounds of sexual orientation.

In the past, only Parliament had authority to resolve such policy disputes.

Today, judges in both Britain and Canada are deeply embroiled in these controversies. What is going on in the courtroom appears to be, said Gearty, "a narrow battle between two adversaries on a point of law," but in reality, "huge issues of policy are, in fact, being formulated as legal rules of general application."

Are British judges prepared to take on this new role? Gearty doesn't think so. In his lecture, he called for the appointment of a "public interest officer" with a small team of officials to advise judges on the potential social and economic ramifications of rulings that change the law.

In addition, Gearty suggested the select committee of Parliament on human rights should hold confirmation hearings for judicial appointments.

"I also think," he said, "senior U.K. judges will have to be prepared to meet with Parliament -- perhaps with this new human rights committee -- to explain in general terms what is happening in the courts under the Human Rights Act and to defend --- not specific decisions, but general policy developments -- to that body. The committee might legitimately want to investigate, for example, what has happened to Parliament's criminal statutes under the Human Rights Act. Or it might want to assess the cost of particular decisions or the rationale behind some particularly controversial declaration of incompatibility."

These are eminently sound proposals. In a democracy, it's essential that judges who legislate are held politically accountable for their policy decisions.

"Far from being antagonistic about such developments," insisted Gearty, "the judges should welcome them, as part of that dialogue with the other branches of government, for which many have so long argued. The revolution brought about by the Human Rights Act does not stop at the door of the law courts.

" 'What judges are for' is set to become one of the liveliest issues in our public culture in the decades that lie ahead."


Write Rory at The London Free Press, P.O. Box 2280, London, Ont. N6A 4G1 or fax 519-667-4528 or E-mail.
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