Leading figures in politics, law, and academia debate the role of courts

15 February 2011

On Friday 11th February the Foundation for Law, Justice and Society, in association with the Centre for Socio-Legal Studies, brought together leading figures from the worlds of politics, law, and academia to debate 'The Role of Courts in a Democracy' before a large and appreciative audience at Magdalen College, Oxford.

The debate sought to assess the growing trend towards the "€˜judicialization of politics"€™, in which judges are increasingly implicated in settling policy disputes.

Charles Clarke making his opening remarksThe prominent legal commentator Joshua Rozenberg chaired a panel comprising the former Home Secretary Charles Clarke, Lord Justice Jacob of the Court of Appeal, and Professor Richard Bellamy of UCL, each of whom presented a different view of the appropriate relationship between the government and the judiciary.

Charles Clarke opened his remarks by welcoming the debate as an opportunity to bring about dialogue between the different actors involved in forming and interpreting the law, and went on to emphasize his support for the European Court of Human Rights and the Human Rights Act. Recalling his submission to the Lords Select Committtee on Constitutional Affairs, he critiqued the adverse effect of the principle of separation of powers and called for more interaction between the government and the judiciary, specifically when seeking guidance as to whether legislation concerning control orders would be ruled legal by the ECtHR.

Other such recent examples of contentious legislation, including prisoners' voting rights, were cited by Lord Justice Jacob in his opening statement, in which he asserted that politicians had deliberately avoided taking decisions on certain politically sensitive issues, thus inevitably bringing judges into the process of interpreting law and influencing the public policymaking process.

Professor Bellamy followed these remarks by arguing that the rise of human rights legislation in recent years is a particluarly complicated matter in this regard, providing a set of values rather than proceses for judges to follow, and thereby threatening to undermine the rule of law by allowing judges undue discretion.

A cross-examining panel were invited to interrogate these opening position statements, led by the Hon Mr Justice Philip Sales, who brought his experience of representing the government in some of the most significant public law cases of recent years. Alongside him were Professor Daniel Kelemen from Rutgers University, who provided expert insight on the role of the ECtHR; and former MP and Professor of Government at UCL Tony Wright, who voiced his optimism at refining the best possible balance of powers through an ongoing iterative process involving public deliberation and debate.

A wide-ranging and lively debate ensued, encompassing issues such as the appropriate forum for any dialogue between political and judicial actors, the dangers of perverse effects, and ways to overcome the complexity and protracted nature of the process of framing  legislation.

Questions were taken from the audience, before proceedings were brought to a close. The debate formed the public counterpart to a two-day academic workshop featuring political scientists and legal experts, who presented their work on a range of related issues, from the rise of eurolegalism and the role of international courts, to judicial reform in Eastern Europe and the recourse of civil society actors to European Courts.

A workshop report will be published in the coming months, and a video of the debate is available on our Video Section.

A policy brief on the role of courts in Eastern Europe written by the workshop convener Cristina Parau is now available to download.