Rein in judicial supremacy with a new oath of allegiance to uphold Parliament
Embargoed to 0001 Friday March 11th
- Judges who challenge the will of Parliament should risk losing office
- Human Rights Act gives judges too much scope to impose their own views
- A bill of rights is pointless and risks further judicial activism
Judges should be required to swear an oath to uphold Parliamentary sovereignty to protect the freedom of the people from the encroachments of an elitist judiciary, the director of Civitas argues in a new book.
Dr David Green warns of the steady encroachment into areas of law-making by judges intent on imposing their own preferences onto everybody else without any democratic mandate.
He calls for a judicial oath of allegiance to Parliament that would leave judges liable to be removed from office if they sought to overturn the democratic laws of the land.
Dr Green urges the abolition of the Human Rights Act but says that further action is needed to reassert the sovereignty of Parliament in the face of judicial supremacism.
‘The Human Rights Act is not the only cause of judicial supremacism. Judges should be required to swear an oath of loyalty to parliamentary sovereignty,’ he writes.
‘Responsibility for making decisions about fundamental principles should lie with the people themselves, through Parliament, not with the courts.
‘When judges are sworn in they currently swear by almighty God to “do right to all manner of people after the laws and usages of this realm, without fear or favour, affection or ill will”. It would be a very simple matter to add a clause: “and to uphold the sovereignty of Parliament”.
‘The effect would be that judges who invent new laws without public or parliamentary approval will be in breach of their oath and liable to removal from office.’
A bill of rights is unnecessary
Dr Green cautions against a new bill of rights, as proposed by the government to replace the Human Rights Act, saying that such a document would be too vague and so similarly vulnerable to exploitation by activist judges.
Instead, British citizens should be able to take cases under the European Convention on Human Rights to the Strasbourg court, but its rulings should have no legal force until they have been confirmed by Parliament.
‘A bill of rights is not necessary. We already have ample laws that protect our rights and they can be improved or added to by Parliament as required. A home-grown grand declaration would serve no useful purpose and, because of its inevitable vagueness, it would create new openings for judicial supremacism,’ Dr Green writes.
‘The simplest approach would be to annul the Human Rights Act. As signatories of the European Convention on Human Rights (ECHR), British citizens would still be able to take cases to the Strasbourg court, but Parliament should resolve that its rulings have no legal force until Parliament has deliberated and made a decision.
‘Until that point, the rulings of the Strasbourg court should be no more than ideas for consideration by Parliament and the people themselves.’
Judicial supremacism should be reined in
Dr Green’s recommendations are designed to challenge the growing encroachment of the courts into matters which are properly the responsibility of Parliament, which represents the people.
This judicial supremacism has flourished in recent decades as the sovereignty of Parliament has been eroded by the 1998 Human Rights Act and the 1972 European Communities Act, as well as the three devolution acts of 1998.
‘The campaign for judges to be able to override Parliament is best seen as a disguised attempt to strengthen the aristocratic element in our system.
‘Members of the educated elite believe they should be able to impose their preferences on everyone else without going to the trouble of taking part in public discussion.
‘The Human Rights Act has increased judicial activism and extended the realm of the courts, but Parliament retains ultimate authority and could rein in the courts if it chose to.’
Making judges the final arbiter is a form of dictatorship
Dr Green argues that human rights legislation, because it is open to such wide interpretation, gives judges too much scope to impose their own views. Instead, important decisions should be made by Parliament.
‘Defenders of the Human Rights Act contend that the Act protects us from the abuse of state power, but in truth it has the opposite effect. Because the European Convention on Human Rights uses abstract phraseology, it allows judges to make radically different interpretations. On fundamental matters like press freedom and safety from terrorism, the Human Rights Act can mean one thing today and the exact opposite a few months later.
‘Giving judges the power to decide these balances is not preferable to allowing Parliament to decide. There are dangers, including the tyranny of the majority, but making judges the final arbiter is no solution. It is a form of dictatorship. In practice words do not guarantee anything. We must rely on the moral spirit of a people armed with institutions for discussion, thought and decision.’
‘Democratic Civilisation or Judicial Supremacy? A discussion of parliamentary sovereignty and the reform of human rights laws’ is published on Friday, March 11th by Civitas: Institute for the Study of Civil Society.
David G. Green is the Director of Civitas. His books include The New Right: The Counter Revolution in Political, Economic and Social Thought, Wheatsheaf, 1987; Reinventing Civil Society, IEA, 1993; Community Without Politics: A Market Approach to Welfare Reform, IEA, 1996; Benefit Dependency: How Welfare Undermines Independence, IEA, 1999; We’re (Nearly) All Victims Now, Civitas, 2006; Individualists Who Co-operate, Civitas, 2009; Prosperity with Principles: some policies for economic growth, Civitas, 2011; What Have We Done? The surrender of our democracy to the EU, Civitas, 2013; and The Demise of the Free State, Civitas, 2014.
Democratic Civilisation or Judicial Supremacy? A discussion of parliamentary sovereignty and the reform of human rights laws