In a speech to the Cardiff Business Club this evening the Lord Chief Justice of England and Wales, Lord Phillips of Worth Matravers, addressed a fundamental misconception of the role of the judge.
“The misconception,” he said, “is that it is open to a judge to decide a case on the basis of his personal view of the requirements of justice. In other words, when he comes to sentence a criminal, he can impose whatever sentence he believes the criminal deserves; or when a challenge is made to a decision by government, the judge can if he chooses frustrate the wishes of Parliament by declaring the decision unlawful.”
Lord Phillips noted that judges have also recently been under attack in the field of criminal law where the media and on occasion ministers have attacked individual judges for imposing what were alleged to be unduly lenient sentences. He pointed out that a judge’s room for manoeuvre is very restricted.
“Parliament has laid down rules that significantly restrict the judge’s discretion. Statutes provide alternatives to custody – fines and a wide variety of community punishments. Judges are directed which to choose. We are forbidden to impose a sentence of imprisonment if there is a viable alternative and, if we do impose a sentence of imprisonment, we are directed that it must be the shortest commensurate with the seriousness of the offence.”
Turning to the judge’s role in ruling on disputes between individuals and the State, the Lord Chief Justice said: “We will rule unlawful an administrative decision if the person executing it has shown bias, has had regard to irrelevant matters or failed to have regard to relevant maters or otherwise have acted in a manner that is irrational. The test that we apply is to ask whether any reasonable official could have acted in the manner under review.
“It is in relation to the exercise of judicial review that judges are often criticised for frustrating the will of Parliament, but even here we are only attempting to make an objective application of the law. We proceed on the basis that, when conferring powers on officials, Parliament expected the officials to apply them for proper reasons and that decisions based on improper reasons defeat the intention of Parliament.”
Lord Phillips said that the Human Rights Act places a duty on all public authorities to observe citizens’ human rights and citizens can sue for damages if their rights are infringed.
“What happens if an Act of Parliament expressly authorises an official to act in a way that infringes a Convention right? It is a fundamental constitutional principle in this country that Parliament is supreme. Judges cannot refuse to apply an Act of Parliament on the ground that it is unconstitutional or contrary to a Convention to which the United Kingdom is party.
“The Human Rights Act provides that if an Act of Parliament infringes the Human Rights Convention the judge must nonetheless apply the Act, but can make a declaration that it is incompatible with the Convention. So far the Government has taken declarations of incompatibility very seriously and hastened to amend laws that judges have ruled incompatible with the Convention. ”
He also commented on the EU Refugee Convention which requires States to give asylum to refugees who face persecution in their own countries. The exception being that the Convention entitles a State to deport someone who is a threat to its national security, even if that individual will be at risk of persecution when sent home.
“Despite this, the Strasbourg Court, in a case called Chahal, has ruled that it is a breach of the Human Rights Convention to deport someone who will be at risk of inhuman treatment in his own country, even if he is an illegal immigrant and however great a risk he may pose to the security of the country that he has illegally entered.”
ENDS
