[A-List] UK state: constitutional deform

["Michael Keaney" <michael.keaney@xxxxxx>]

European attack on Irvine's role as judge

Clare Dyer, legal correspondent
Thursday February 13, 2003
The Guardian

The lord chancellor's dual role as judge and politician has come under
attack at the Council of Europe, the 44-nation body which oversees the
operation of the European convention on human rights.

Members of the council's parliamentary assembly say the lord chancellor's
combined job of cabinet minister, judge and speaker of the House of Lords
breaches the human rights convention, which guarantees a trial by "an
independent and impartial tribunal".

Lord Irvine insists that the human rights convention does not bar him from
sitting as a judge in the Lords, the UK's highest court, on any matter not
concerning the interests of the state. He has sat on a handful of cases, the
last more than two years ago.

The Council of Europe was set up by the UK and nine other European states in
1949 to ensure the lessons of the Holocaust and the second world war were
applied throughout Europe. The body, which now comprises 44 states, is
separate from the European Union but all 15 EU states are also Council of
Europe members.

The members of its parliamentary assembly are appointed by the parliaments
of the member states. They include 18 chosen from among British MPs and
peers of all parties.

A resolution put down by Erik Jurgens, a Dutch member of the assembly and
retired professor of constitutional law, calls on the UK to separate the
roles of judge and politician and stop the lord chancellor sitting as a
judge. It has been signed by 11 members from France, Germany, Belgium,
Switzerland, the Netherlands, Russia and Ukraine.

Mr Jurgens, who is a vice-president of the assembly, has taken evidence from
leading UK legal figures, including three of the most senior law lords -
Lords Bingham, Steyn and Hoffmann - the lord chancellor's permanent
secretary, Sir Hayden Phillips, and the shadow attorney general, Bill Cash.

He is preparing a report which is expected to be adopted by the assembly's
committee on legal affairs and human rights in early March. It will then go
to the whole assembly for debate.

He said yesterday that he was advising eastern European countries seeking
entry to the Council of Europe that they would not be admitted unless their
judges were totally independent, so it was an anomaly that one of the
original members had a figure like the lord chancellor.

"Sooner or later a case is going to come to the European court of human
rights at Strasbourg, and I think they will certainly say this is an
unacceptable combination," he added. The court had already decided that the
home secretary could not be involved in sentencing by deciding the minimum
term for murderers serving life, and the two issues were similar.

The resolution says: "The assembly ... has repeatedly stressed that judges
should be a completely independent branch of government. It is undeniable
that combining the function of judge with functions in other branches of
government calls that independence seriously into question."

The call from the Council of Europe was echoed by Justice, the human rights
group, in a report this week urging that the lord chancellor should no
longer sit as a judge.

Roger Smith, Justice's director, said: "We have crossed a rubicon. The
political powers of the lord chancellor can no longer be combined with a
role as a judge."