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It’s a knock out: judicial activism versus the sovereignty of parliament

18 February 2011

9:05 AM

18 February 2011

9:05 AM

The prisoner voting debate is coming to a head, and Dave has turned once too often. The
Times has received (£) what it describes as a government legal memo, urging the government to defy the demands of
the European Court of Human Rights. After last week’s parliamentary debate, the government’s lawyers calculate that the ECHR can only put ‘political pressure rather than judicial
pressure’ on British institutions.

This is a seminal moment: political will has not been met by administrative won’t. But would non-compliance succeed? Last month, Austria’s attempt to withdraw the franchise from all
prisoners serving more than a year was thrown out by the ECHR; but one suspects that Cameron will chance his arm in this great game because the prize is worth winning: ‘The PM who brought
rights home’ is a mantra that will aid his re-election.   


There is something of the game-show about this nascent constitutional debate about the courts and the sovereignty of parliament. At the moment, the audience clamour for parliament and the press use
‘judicial activism’ pejoratively. But on last night’s edition of This Week, Michael Portillo stood up to
the consensus. He said:

‘Judicial activism is a tautology… It’s a bit like talking about political politicians… All judges are active and in this case (the right of appeal for people who appear on
the sex offenders’ register) they have made the right decision. People are placed on this list for life without any redress or appeal process… They ought to have an appeal – as
those on other lists compiled by the government do. That’s as close to a human right as I can imagine… What you have here is parliament grandstanding on a populist issue.’

Portillo’s fellow guest, Jacqui Smith, invoked the spirit of ‘tough on crime, tough on the causes of crime’ in response – and I don’t doubt her position is
more popular. But Portillo is right. Parliament could have made (and many would say should have) made vocal objections against human rights law when the Supreme Court decided against a Jewish faith school’s non-academic selection criteria last year. But it chose this moment
because of its emotive force. The sovereignty of parliament is sacred; but human rights are inviolable, be they decided in the Supreme Court or the ECHR.


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