Daily Mail

Judicial independence and the assault on sovereignty

By Melanie Phillips.
Daily Mail
May 29 2002

Once again, our democratically elected politicians find that their hands have been tied and their wishes thwarted by the edict of a foreign court.

The European Court of Human Rights in Strasbourg has upheld the claim by the convicted murderer Dennis Stafford that the decision by the former Home Secretary Jack Straw to keep him in jail longer than was recommended by the Parole Board was illegal.

The general principle that this ruling lays down is far-reaching. It strips the Home Secretary of his power to decide when a murderer should be set free.

It is not surprising that the current Home Secretary, David Blunkett, is blowing his top. No Home Secretary could find it anything but insupportable to be told by a foreign court what to do. For he will have to comply. This is because rulings by the Strasbourg judges have supremacy over English law.

Many will agree that such a fetter on a democratically elected government by an unaccountable foreign institution is insupportable. But two issues are involved here, and it is important to separate them out. First, the principle that no-one should be sentenced by a politician to lose their liberty, and that the courts alone should decide the sentence in individual cases, is surely correct.

So on the issue before them, the Strasbourg judges were right. But the means by which they were able to impose their authority upon English law and British democracy is a separate matter, and one that should rightly cause the greatest concern.

First, the issue itself of who should take the decision over the time that convicted murderers should spend in prison. It is surely right that the decision to deprive someone of his liberty should only be taken by a judge who is independent of the political process.

Home Secretaries like to argue that they should ultimately be the guardians of public safety since they are directly accountable to the people. If the public is outraged by the lightness of a sentence, the argument goes, then politicians must be able to step in and correct such mistakes made by the judiciary.

This is a profoundly wrong and dangerous argument. Public outrage is often ill-informed. The public do not have access to all the information about a case; they have not sat and heard the evidence, they have not read the professional reports. They rely instead on what they pick up through the media.

That emotions often run high over certain deeply offensive and disturbing cases is not in doubt. Politicians sensitive to the public mood may well seek to appease their prospective voters. But this is inimical to justice. It replaces dispassionate, objective justice by the law of the lynch mob.

Politicians lay down in statute the parameters of sentencing, but elementary justice dictates that when it comes to individual cases, the sentence must be set within those guidelines by the judge. He alone will have evaluated all the evidence and come to a professional decision which uses statute, sentencing guidelines and case law to balance issues of retribution, deterrence and public safety.

So the British government got it wrong. But it should be for that government, answerable to the British people, to change its policy, not for judges in Strasbourg.

Human rights advocates argue that the principle in the human rights convention of which the government fell foul in the Stafford case, that no-one should be deprived of their liberty except by a court, is universal and therefore all governments should be bound by it.

But it is not universal at all. Indeed, the Stafford judgment reverses a previous ruling by the Strasbourg court in 1994 when it said the very opposite and upheld the Home Secretary’s right to extend a jail term for murder.

The court has now overturned itself by arguing that a consensus has developed in England since then that mandatory life sentences no longer mean actual life terms. This is, to put it mildly, a dubious assertion. Is it likely that such a major shift has occurred in the past eight years? Moreover, it signally fails to support the point of principle on which the court supposedly found against the government, that politicians should never be involved in the sentencing process.

It is hard to avoid the conclusion that this court makes it up as it goes along. Its own claim to authority is deeply dubious; some of the judges it appoints have not even been judges in their own countries but have been lawyers or even diplomats. A pronounced whiff of political manoeuvring hangs over their deliberations. And some even come from what is politely termed the ‘new democracies’, from which they presume to preach human rights to Britain.

Of course, our own all-singing, all dancing Human Rights Act is supposed to avoid the affront of being browbeaten by a foreign court. But this hardly makes the situation any better. For this act still takes power away from parliament and gives it to the judiciary. The result is that both are weakened by it.

This is because the notion that these rights are universal is a fiction. For every right bestowed by the act, it lays down its opposite too. It therefore requires the judges to arbitrate on deeply divisive issues, which means they inevitably stray into territory which is properly the province of politicians elected by and responsive to public opinion.

This process means that the judges are inescapably becoming politicised, a development which will only diminish the authority and integrity of the judicial process.

This is an irony indeed. For removing politicians from the sentencing process is necessary to protect the integrity of the judicial system. Yet the means by which this is being done, the use of human rights law, is itself an assault on that judicial integrity.

British democracy is suffering because both Parliament and the criminal justice system are failing in authority and public esteem. Human rights law, whether administered by judges in Strasbourg or by our own domestic courts, is taking an axe to those already undermined institutions.

The human rights convention was originally conceived to promote a very different agenda. Drafted in the wake of the second world war, it was an attempt to lay down a set of principles to ensure that the tyranny of fascism would never deface Europe again.

It has now mutated into something very different, a Trojan horse for those who want to force people to conform to highly subjective notions of how to behave. It is deeply foreign to the tradition of English common law, which presupposes instead that everything is permitted unless expressly forbidden.

A furious David Blunkett is saying he will now legislate to ensure that life sentences can still mean life. It remains to be seen how he will do this while maintaining the important principle that Home Secretaries should keep out of individual cases.

But on the shift in power to the judiciary which so enrages him, the human rights-obsessed government to which he belongs has merely been hoist by its own petard.

To comment on any article, e-mail elanie@melaniephillips.com

© Melanie Phillips 2002.