Table of Contents

Judges as Guardians of Constitutionalism and Human Rights

Judges as Guardians of Constitutionalism and Human Rights

Edited by Martin Scheinin, Helle Krunke and Marina Aksenova

This book considers the many challenges that national and supranational judges have to face when fulfilling their roles as guardians of constitutionalism and human rights. The contributors, both academics and judges, discuss key examples of contemporary challenges to judging – including the nature of courts’ legitimacy and its alleged dependence on public support; the role of judges in upholding constitutional values in the times of transition to democracy, surveillance and the fight against terrorism; and the role of international judges in guaranteeing globally recognized fundamental rights and freedoms.

Chapter 5: Judges as guardians of constitutionalism and human rights: the judiciary and counter-terrorism in the United Kingdom

David Hope

Subjects: law - academic, constitutional and administrative law, criminal law and justice, human rights, law and society

Abstract

David Hope (The Lord Hope of Craighead), former Deputy President of the Supreme Court of the United Kingdom. Basing himself on the dissenting judgment by Lord Atkin in the 1941 case of Liversidge v Anderson, the author emphasises the duty of the judges to stand up for the rule of law, and to see that it is extended to everyone without exception. The chapter also addresses the domestic effect of the Human Rights Act that in 1998 made the European Convention of Human Rights directly applicable by UK courts, thereby providing the judges with the weapons that they needed to ensure that the Convention rights of everyone, even of those suspected of international terrorism, were respected by the executive and by Parliament. The way the judiciary has performed its role as guardian of the Convention has in turn affected the conduct by political branches of government. When the government proposes new legislation, it must present a statement that the provisions are compatible with the Convention rights. A further dimension of the role of judges as guardians is related to the as such legitimate secrecy surrounding the work of security services. The judges can and do demand a sufficient disclosure to enable them to make the assessment as to the proportionality of each measure. Their undoubted independence enables them to perform the task without hindrance and with all the determination that it requires.

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