Who is really in charge - the UK’s unelected judges or its elected politicians, its courts or its parliament?
Or is the Strasbourg-based European Court of Human Rights in charge, as many of its critics fear?
These were the questions posed by Lord Neuberger, Master of the Rolls, when giving the second Lord Alexander of Weedon lecture, Who are the masters now?, on 6 April.
And in answering them, he gave probably the best defence of the Strasbourg court and the European Convention on Human Rights that I have heard.
Fears have been voiced about the ‘creeping supremacy of the Strasbourg Court’ over our own home-grown courts and parliament, he said.
It is true that the European Convention on Human Rights (ECHR) imposes obligations on the state to ensure that judgments of the Strasbourg court are implemented, he said, but those obligations are in international law, not domestic law.
If parliament chose not to implement a Strasbourg judgment, Neuberger said, it might place the UK in breach of its treaty obligations. Such a choice was a political decision, with which the courts could not interfere.
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And anyway, the obligation depended upon continued membership of the treaty – and the UK could always withdraw from the treaty.
He said: ‘It is all too easy to attack (the ECHR) as a foreign import, but it was largely drafted by UK lawyers to reflect well-established English principles. Its noble aim is to protect individuals against an over-mighty state… by telling the state what it cannot do.’
He added: ‘We may think it is inappropriate that Strasbourg pokes its nose into the votes for prisoners issue on the basis that it should be left to our parliament to decide.
'However, if Strasbourg said votes for criminals was a matter for national legislatures, it may be that a dictator might see this as a green light to depriving his enemies of the vote by trumping up charges to bring against them…
‘It may be thought a small price to pay for a civilised Europe that we sometimes have to adapt our laws a little.’
Neuberger also said in his speech that the sovereignty of the UK parliament was ‘absolute’, not least because ‘in a country with no written constitution, and which has had no revolution for over 300 years, it would require a very powerful reason indeed for parting from what has been almost universally accepted’.
He added that in a world where ‘democratic accountability is of the essence’, judges could only claim the right to override the will of the democratically elected legislature if given that right by the people through their democratically elected representatives.
If parliament, in other words, gave judges the right to overrule parliament – something that was unlikely ever to come about.
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