Judges Can be Overruled

The EU's Human Rights Act need not be incompatible with parliamentary sovereignty - if the government were to grow a backbone

Almost every week newspapers flaunt headlines along the lines of “Judge releases Afghan terrorists” or “Courts overturn immigration law”. Occasionally these headlines exaggerate; rarely do they invent. On the day I sat down to write this squib, the Law Lords ruled that it would be “arbitrary and unjust” to require a migrant to establish that his marriage was genuine rather than a sham arrangement to avoid deportation. Even to ask the question, ruled the court, would breach his human rights. Much could be said about this ruling: for instance, where does it leave those Muslim girls forced into marriage? British diplomats routinely ask them this very question. Is protecting young women from legalised rape now a breach of their human rights? Or did the court simply not think one step ahead?

More important from the standpoint of everyone else, however, is the provenance of the judgment. The Law Lords had discerned a “right to marry” in Section 12 of the European Convention on Human Rights. Only a few days before this judgment, another court, the European Court of Justice, had determined that a migrant who married a citizen while awaiting deportation could remain indefinitely. Taken together, these two cases ­nullify whole areas of immigration law and administration either passed by, or accountable to, Parliament.

When such judicial over-reaching occurs, governments usually wring their hands and proclaim their impotence. Sometimes they are telling the truth. Decisions of the ECJ, being a court of the European Union, override British law (existing or prospective, Mr Cameron). However, not all judicial rulings have this force. Those declaring some piece of legislation passed by Parliament to be incompatible with the Human Rights Act may be treated by both the media and politicians as overturning it. But in fact the court merely issues a “certificate of incompatibility” between the Human Rights Act and the other law.

This limit on judicial power was necessary to make the Human Rights Act itself compatible with parliamentary sovereignty. Its effect is that ministers need not change a law to meet the court’s ruling. They could continue to operate the existing law or even reinforce it. In practice they pretend they are impotent and rush to enforce the court’s will every time. And similar arrangements in other countries – the “Notwithstanding” clause in Canada, for instance – have also become constitutional dead letters almost on the morrow of passage.

Why do governments yield in this way? Well, in the British case it would be embarrassing for Labour ministers to concede by their actions that they had themselves created a Frankenstein’s monster in the Human Rights Act. But there is surely a deeper reason. Judicial power, domestically and internationally, is increasingly exercised by political allies of the social democratic Left. Much of it is conveniently free from the risk of reversal or repeal by less enlightened electorates.

So if ministers suffer a few defeats at the hands of the courts, they nonetheless win a longer war – and sometimes they are not too distressed by the defeats.

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