Law and democracySaturday 22 October, 10.00 - 11.30 , Frobisher 4-6 State and Society
The vote to leave the European Union is sparking an upheaval in the British legal system, which over 40 years has become ever more closely enmeshed with the EU and other European bodies. Some see this as an opportunity to liberate the nation from onerous regulation and rampant judicial activism. For example, Liz Truss, the justice secretary, has said she is going to fulfill the manifesto commitment to scrap the Human Rights Act (based on the European Convention on Human Rights) and replace it with a ‘true British bill of rights, decided by parliament and amended by parliament [that] would protect not only the rights set out in the convention, but could include traditional British rights not protected by the ECHR’. But others are sceptical, and fear that Brexit will unravel many of the rights and protections that have been enshrined in UK law thanks to the EU. Some are even seeking to use the law to prevent Brexit even happening, regardless of the vote.
The battle over Brexit is not the only place where the law is encroaching into the realm of political decision making of late. The courts passed rulings about the internal conduct of the Labour Party’s leadership contest, with judges deciding which members can and cannot vote. Meanwhile, the Supreme Court’s strong criticism of parts of the controversial Named Person scheme in Scotland was welcomed by many and arguably is more in line with public opinion. But even when it seems the courts are reflecting popular will against the encroachments of an illiberal state, this raises the question of whether an unelected judiciary should have the power to overrule political decisions made by our elected representatives.
Is judicial oversight of our political process a necessary check on the power of government and the ‘tyranny of the majority’? Are some political decisions best left to judges, who, with a duty to be impartial, can make clear-eyed rulings on important political matters about which members of the public may be ill-informed? Where the law is seen as an important guardian of minority rights, are lawyers key activists in the fight to protect democratic gains? Is a British Bill of Rights any more democratic than its European sibling, which cites its strength as not being susceptible to the whims of national political pressures? Or, do appeals to the law ultimately erode democracy, leading to an even greater chasm between the demos and our lawmakers than currently exists? Is Brexit our cue to steady the ship of state or to rethink radically the relationship between law, politics and democracy?
senior tutor and professor of EU law and employment law, Trinity College, Cambridge; author, The Substantive Law of the EU: The four freedoms
professor of Human Rights Law, LSE; barrister, Matrix Chambers; author, On Fantasy Island: Britain, Strasbourg and Human Rights
criminal lawyer; director of City of London Appeals Clinic; legal editor at spiked; author, Why Rape Culture is a Dangerous Myth: From Steubenville to Ched Evans
barrister; member, Commission on A Bill of Rights; chairman of Lawyers for Britain
barrister, Pump Court Chambers; blogs at www.barristerblogger.com, shortlisted for The Comment Awards "Best independent blog" 2015
The Human Rights Act should not be repealed, Conor Gearty, UK Constitutional Law Association, September 2016
Don’t abuse the Brexit litigants: their action shows that we live in a free country, Matthew Scott, BarristerBlogger, July 2016
Turning parliament against The People, Luke Gittos, spiked, July 2016
The constitutional practicalities of leaving the EU, Professor Catherine Barnard, UK in a Changing Europe, May 2016
The Human Rights Act, Liberty
The moral, principled case against the Named Person scheme, Jon Holbrook, spiked, August 2016