Too powerful, too political
Tom Clark and Alex Dean (“Judges in the dock,” March) are wrong to argue that the scope of judicial power in our constitution does not require reform.
The Human Rights Act 1998 politicises adjudication and undermines legal certainty. Judges are increasingly willing to misinterpret legislation, departing from its intended meaning, and the law of judicial review is too often “politics by another means,” to quote Lord Justice Singh. In some cases judges have even openly questioned parliamentary sovereignty.
This is a constitutional problem that requires attention. My recent paper, “Protecting the Constitution,” makes this case in more detail and recommends reform of human rights law, legislation in response to particular judgments, and changes to the Supreme Court’s institutional structure.
Clark and Dean object to the paper’s proposals in relation to judicial appointments. But encouraging the Lord Chancellor to exercise his existing powers, or enabling him to choose from a shortlist, would not undermine judicial independence. It would be a modest but important change, bringing us more closely into line with Australia, Canada and New Zealand.
Richard Ekins, Associate Professor, University of Oxford and Policy Exchange’s Judicial Power Project
Most of the criticism of the courts in recent times has revolved around their approach to rights litigation, obviously more of a feature since the Human Rights Act, often on the basis that it necessarily involves the weighing of competing moral values.
They also use the Miller rulings to make their case. But those were very different, involving what I call the structural constitution—its ground rules and basic institutional set-up—and in fact they added a new layer to centuries-old jurisprudence.
It helps for opponents of the courts to bundle all this together. But they should be called on to explain—even if we grant them the curtailing or eradication of rights litigation—what they would like to see done in respect of the structural constitution. Do they sincerely want to see it as a politics-only zone? Then we really are in Hungary or Poland territory.
Thomas Poole, Professor of Law, London School of Economics
Anne Case and Angus Deaton make a powerful argument in railing against many of the injustices in the modern world (“Putting the Gini back in the bottle,” March). But they take their argument too far with the criticism of the Gini…