Claims by the European Court of Human Rights to set judge-made law on a widening range of social issues is threatening to undermine the sovereignty of Parliament, one of Britain’s most senior judges has warned – but critics have said judges should not make political statements while still on the bench.
Lord Judge, the former Lord Chief Justice of England and Wales, said that Parliament needed to decide for itself how much power it was willing to cede to the Strasbourg-based court.
His intervention came as the President of the Court, Judge Dean Spielmann, warned Britain’s refusal so far to implement the court’s ruling that the blanket ban on prisoners voting must end was a breach of international law.
At the same time, he said that any attempt by Britain to pull out from the European Convention on Human Rights could set the UK on the path to leaving the European Union altogether.
However, Lord Judge expressed concern that Judge Spielmann was claiming too much power for a body of unelected judges whose decisions could not be overruled.
“This is a court which is not answerable to anybody,” he told the BBC Radio 4 Today programme.
“If it’s right, it can’t be overruled by anybody. I genuinely don’t think that a body of judges – however distinguished – should have that sort of power.”
Lord Judge, who described himself as a supporter of the convention, said the court’s claims had implications for the sovereignty of every nation in Europe – not just the UK – and he urged the Government to seek allies in trying to rein it in.
“His (Judge Spielmann’s) view means that the court in Europe is entitled to tell every country in Europe how it should organise itself,” he said.
“He refers to it as a living instrument. Of course the convention isn’t a dead instrument, but it means that legislation can be made by judges on all sorts of societal issues – binding legislation – and if that’s the position there is a very serious problem with sovereignty.
“It’s not a UK problem, the sovereignty issue affects every single country in Europe.”
He added: “It is time for us to recognise that it is a very important time. My own view is: stop here.”
Judge Spielmann, however, insisted that the UK should not defy the court’s ruling on prisoner voting rights.
“This would be clearly inconsistent with the international law obligations of the United Kingdom and also the obligations under the convention,” he told the Today programme.
He said that if Britain sought to pull out of the convention – as some Tory MPs are demanding – it would mean leaving the Council of Europe, the body which created the European Court of Human Rights, and ultimately the EU.
“I cannot see how the United Kingdom could remain a member of the Council of Europe while at the same time withdrawing from the European Convention on Human Rights,” he said.
“All the members of the European Union are also members of the Council of Europe. I can hardly see how a member of the European Union could withdraw from the Council of Europe. I see a problem there.
“I think from a political perspective it might be very difficult to stay in the European Union.”
Lord Judge acknowledged that there were differences among British judges as to what extent the rulings of the European Court of Human Rights were binding on the UK which MPs now needed to resolve.
“My very strong belief is that this issue now needs to be resolved by Parliament,” he said.
“The issue that is in play here is not the convention, it’s sovereignty .The most fundamental principle of our unwritten constitution is parliamentary sovereignty.
“Our elected representatives have ultimate sovereignty not only over our own unelected judges but in my view over the unelected judges of any other jurisdiction, including Europe, unless we choose to give them sovereignty.”
Mark Leech, editor of Converse the national newspaper for prisoners criticised Lord Judge for making ‘what are in essence political statements’.
Mr Leech said: “It’s a bit rich for Lord Judge to criticise Judges in the European Court for not being elected – he is not elected either and unlike European Judges who play no part in the formal legislative process Judge is also a member of the House of Lords.
“Lord Judge is a political appointee in reality, appointed by the Queen but only on the recommendation of the Prime Minister – he should be apolitical and he would have done better to have criticised the Government for failing to implement the ECHR ruling on prisoner voting, instead of openly supporting the Prime Minister who put him where he is.
“Our senior Judges should not make what are in essence political statements while sitting on the bench – if he wants to become political resign from the bench and stand for parliament – until then he should button his judicial lip and not bring the judiciary into disrepute.”