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2010 and 2011 have seen the development of three key issues relating to the (political) role of the judiciary – the concept and place of human rights within our legal system, the appointment of judges and, more recently, the role and influence of the UKSC in Scotland.
Recently two more contributions have been added to the debate. Firstly, Aidan O’Neill QC tells The Telegraph that an ” Independence referendum is probably illegal“.
“Aidan O’Neill said only Westminster has the authority to hold a vote on breaking up Britain, but Mr Salmond may seek “political advantage” by crying foul when his proposals are declared unlawful.
“The UK Supreme Court would ultimately decide on whether the referendum was legal, but Mr O’Neill noted that both the First Minister and Kenny MacAskill, the Justice Minster, have “form” in attacking its judges.”
Whilst, in 2000, Jonathan Sumption QC reportedly told The Lawyer that “I’m basically a Tory who votes Labour much of the time”. This is perhaps an insight into his 2011 FA Mann Lecture, where he argues that:
“In a democracy with an uncodified constitution, there is much that depends not on law, but on a broader concept of legitimacy. This involves an instinctive assessment of the limits beyond which law cannot expect to carry moral authority in the face of broadly accepted conventions about public decision-making.”
UPDATE: Rosalind English, over at the UK Human Rights Blog, discusses Sumption’s FA Mann Lecture, arguing that “his central point is not human rights as such, but our misconception of Parliament and the perceived need for judicial constraints on the action of the state.”
