A leading appeal judge has praised the European Court of Human Rights for forcing the United Kingdom to re-examine long-established practices under which individuals had been denied their rights.
Opening the Human Rights Law Conference organised by the campaign group Justice and the publishers Sweet & Maxwell in London this morning, Sir Jeremy Sullivan said: “it’s not such a bad thing that we have the European Court of Human Rights to remind us all of the need to stand by principle”.
The judge, who sits in the Court of Appeal as Lord Justice Sullivan, was scathing about a speech in March by Lord Hoffmann, a former law lord.
In his Judicial Studies Board lecture, Lord Hoffmann said the European Court of Human Rights had been “unable to resist the temptation to aggrandise its jurisdiction and to impose uniform rules on member states”.
But, said Lord Justice Sullivan, “it is often a very salutary experience … to be compelled to see oneself as others see one”.
Parliamentary sovereignty in Britain was a “legal fiction which is very far removed from reality”.
The reality, he continued, was “the sovereignty of the executive over Parliament”, unfettered by any written constitution.
“I suggest that until we address that fiction – and the legislative consequences of it – all of us are particularly in need of the European Court of Human Rights.”
Lord Justice Sullivan offered examples of areas where the Strasbourg judges had intervened because our own courts were unwilling or unable to do so.
“Did our procedures for trying child offenders really take sufficient account of a child’s ability to comprehend the criminal trial process?
“Was it really right for the Home Secretary, a politician, to fix the tariffs to be served by individual life-sentence prisoners?
“Was it really necessary to allow the indefinite retention of fingerprint and DNA material of absolutely anyone, of any age, suspected of a recordable offence?”
Turning to orders that restrict the movements and contacts of unconvicted terrorist suspects, he noted that a decision he had given in the High Court quashing control orders on human rights grounds had been upheld by the law lords earlier this year – but only because the House of Lords had been “compelled to do so” by the European Court of Human Rights.
Lord Justice Sullivan’s judgment overturning control orders as “conspicuously unfair” was given in 2006, before he was appointed to the Court of Appeal.
Referring to his promotion, he said: “Modesty forbids me from identifying the judge in question, who has now been put where he can do slightly less harm.
“And it would be thoroughly unedifying to hear a relatively junior judge saying ‘I told you so’ to the House of Lords, even though it would be – indeed it is – deeply gratifying.”
Lord Justice Sullivan ended his short, unscripted speech by rewriting Kafka’s The Trial to take account of special advocates, lawyers who can speak on behalf of defendants but cannot tell them what is being said in court.
Addressing the conference immediately after Lord Justice Sullivan’s speech, Michael Fordham QC commented: “Some judges – if you put them in a kangaroo court – will jump, but not necessarily in the way the government intended.”