1. C Guarnieri and P Pederzoli The Power of Judges (Oxford: Oxford University Press, 2002) p 185; T Vallinder ‘When the courts go marching in’ in C Tate and T Vallinder (eds) The Global Expansion of Judicial Power (New York New York Press, 1995) p 13.

2. A Stone Sweet Governing with Judges (Oxford: Oxford University Press, 2000). Stone Sweet classes France as a country in which judicialization has taken place by virtue of the empowerment of the Constitutional Council, not in the strict sense a court.

3. See Guarnieri and Pederzoli, n 1 above, chs 1–3. See also M Shapiro ‘The Success of Judicial Review and Democracy’ in M Shapiro and A Stone Sweet (eds) On Law, Politics, and Judicialization (Oxford: Oxford University Press 2002) p 149. Shapiro argues that a supreme court charged not only with interpreting rights but also with delineating a division of powers within the state is in a stronger position to assert judicial authority over political actors.

4. Ridge v Baldwin [1964] AC 40; Padfield v Minister of Agriculture [1968] AC 997; Anisminic v Foreign Compensation Commission [1969] 2 AC 147; Conway v Rimmer [1968] AC 910.

5. See generally D Nicol EC Membership and the Judicialization of British Politics (Oxford: Oxford University Press, 2001).

6. For the present author's contribution, see D Nicol ‘Are Convention rights a no-go zone for Parliament?’ [2002] PL 438, ‘Statutory Interpretation and Human Rights after Anderson’ [2004] PL 274 and ‘Gender Reassignment and the Transformation of the Human Rights Act’ (2004) 120 LQR 194.

7. This research examines the attitude to rights in the two Houses of Parliament. The work of the Joint Committee on Human Rights has already been the focus of academic writings - see D Feldman ‘Parliamentary Scrutiny of Legislation and Human Rights’ [2002] PL 323; A Lester ‘Parliamentary Scrutiny of Legislation under the Human Rights Act 1998’ [2002] EHRLR 432.

8. The empirical and the normative, too often confusingly merged together in academic discourse, nonetheless need to be considered side by side, since it is necessary to arrive at’ a recognition of what is as a basis for bringing about what ought to be‘. See P Norton The Constitution in Flux (Oxford: Martin Robinson, 1982) p 110.

9. Jack Straw 317 HC Official Report (6th series) col 1358, 21 October 1998.

10. F Klug ‘The Human Rights Act - a “third way” or “third wave” Bill of Rights’ [2001] EHRLR 361 at 370.

11. Laws LJ Thoburn v Sunderland City Council [2002] EWHC 195, [2003] QB 151 at [62]–[63].

12. Rights Brought Home: The Human Rights Bill (Cm 3782, October 1997) para 1.18.

13. Above n 2.

14. Above n 2, p 204.

15. Above n 2, p 55.

16. Above n 2, p 130.

17. It might be argued that a system of abstract review facilitates judicialization. In view of the welter of HRA litigation coming before the courts, however, it is arguable that judicialization can easily establish itself even where judicial review is restricted to concrete review. See P Craig ‘Constitutional and Non-Constitutional Review’ (2001) 54 CLP 147; A Stone Sweet and M Shapiro ‘Abstract and Concrete Review in the United States’ in Shapiro and Stone Sweet, above n 3.

18. T Campbell ‘Human Rights: A Culture of Controversy’ (1999) 26 JLS 6.

19. ‘No-one in the trade now believes that the truth about rights is self-evident’: J Waldron Law and Disagreement (Oxford: Oxford University Press, 1999) p 225.

20. J Griffith ‘The Political Constitution’ (1979) 41 MLR 1; M Mandel The Charter of Rights and the Legalization of politics in Canada (Toronto: Wall & Thompson, 1989). Some authors characterise questions raised by rights interpretation as being concerned with moral philosophy; Manfredi argues that ‘elevation to a nation's highest court does not transform any individual into a moral philosopher. Indeed, there is nothing in legal training or in the practice of law which imparts superior judgment in such matters’ (C Manfredi Judicial Power and the Charter (Toronto: Oxford University Press, 2nd edn, 2001) p 195). If one considers Aneurin Bevan's dictum that ‘the Labour Party is a moral crusade or it is nothing’, one might be drawn to the conclusion that there is little difference between morality and politics; people are drawn into political involvement by a certain moral philosophy about the way life should be led.

21. Klug, n 10 above. See also F Klug Values for a Godless Age (London: Penguin, 2000) p 191: ‘The Human Rights Act… does not need to lead to the shutting down of politics … If we do not like the results we can still use all the traditional methods of protest to make our point in the knowledge that in the UK - unlike the US -judges will not have the final say on policies affecting fundamental rights.’

22. M Garnett and P Sherrington ‘UK Parliamentary Perspectives on Europe 1971–93’ (1996) 2 JLS 387.

23. T v United Kingdom, V v United Kingdom (2000) 30 EHRR 121; R (Anderson) v Secretary of State for the Home Department [2002] UKHL 46, [2003] 1 AC 837.

24. See n 12 above, para 2.13.

25. Tory opposition to the HRA differed from Labour opposition to the European Communities Act 1972 26 years earlier. On that occasion, numerous pro-EEC Labour MPs voted against their consciences for the sake of Party unity; here, Conservatives were generally united in their ideological objections to the Bill. See Nicol, above n 5, pp 108–109.

26. See Nicol above n 5, pp 240–242, for a chronology of Labour's volte-face.

27. All the leading members of the Socialist Campaign Group of Labour MPs voted in favour of second reading. The only Group member to speak, Ann Cryer, supported the Bill on the grounds that it would help establish a judge-made law of privacy. She spoke of her experience of press intrusion after the car crash in which her husband, Bob Cryer, himself a Labour MP, died, and she was seriously injured.

28. 306 HC Official Report (6th series) col 837, David Lock (Wyre Forest); col 833, Desmond Browne (Kilmamock and Loudoun); col 826, Fiona McTaggart (Slough), 16 February 1998.

29. Gareth Thomas (Clwyd West) 306 HC Official Report (6th series) col 847, 16 February 1998.

30. Jack Straw 306 HC Official Report (6th series) col 781, 16 February 1998.

31. Fiona McTaggart (Slough) 306 HC Official Report (6th series) col 826, 16 February 1998.

32. Ross Cranston (Dudley North) 306 HC Official Report (6th series) col 842, 16 February 1998.

33. ‘Having decided that we should incorporate the Convention, the most fundamental question that we faced was how to do that in a manner that strengthened, and did not undermine, the sovereignty of Parliament’: 306 HC Official Report (6th series) cols 771–772. 16 February 1998.

34. David Ruffley (Bury St Edmunds) 306 HC Official Report (6th series) col 830, 16 February 1998.

35. Gerald Howarth (Aldershot) 306 HC Official Report (6th series) col 839, 16 February 1998.

36. 306 HC Official Report (6th series) cols 844–845, 16 February 1998.

37. Humfrey Malins (Woking) 306 HC Official Report (6th series) col 813; see also col 847, Edward Leigh; col 839, Gerald Howarth; cols 801 and 820–823, Douglas Hogg, 16 February 1998.

38. 313 HC Official Report (6th series) col 422, 3 June 1998.

39. 313 HC Official Report (6th series) col 423, 3 June 1998. Straw's statement is inaccurate in that it is Parliament, not the House of Commons, which could pass fresh legislation and thereby negate the interpretation emanating from a judicial decision.

40. 583 HL Official Report (5th series) col 535, 18 November 1997.

41. 317 HC Official Report (6th series) col 1301, 21 October 1998.

42. 582 HL Official Report (5th series) col 1228, 3 November 1997.

43. 582 HL Official Report (5th series) cols 1236–1238, 3 November 1997.

44. 582 HL Official Report (5th series) cols 1245–1247, Lord Bingham of Comhill; cols 1255–1257, Lord Scarman; cols 1271–1273, Lord Cooke of Thomdon; cols 1277–1281, Lord Wilberforce; cols 1284–1285, Lord Ackner; cols 1258–1260, Lord Simon of Glaisdale, 3 November 1997.

45. 582 HL Official Report (5th series) col 1267, Lord McClusky; col 1254, Lord Waddington, 3 November 1997.

46. 341 HC Official Report (6th series) col 156, 14 December 1999.

47. 341 HC Official Report (6th series) col 172, 14 December 1999.

48. 341 HC Official Report (6th series) col 171, 14 December 1999. The point was amplified by David Lidington, the Opposition spokesman who wound up for the Conservatives at col 220.

49. 341 HC Official Report (6th series) col 184, Simon Hughes; col 192, Jeremy Corbyn (Labour, Islington North); col 181, Fiona McTaggart (Labour, Slough); cols 179–180, Tom King (Conservative, Bridgewater); cols 205–206, Andrew Hunter (Conservative, Basingstoke); col 215, Lembit öpik, (Liberal Democrat, Montgomery), 14 December 1999.

50. 341 HC Official Report (6th series) col 199, Alan Simpson (Labour, Nottingham North); col 206, Steve McCabe (Labour, Birmingham Hall Green); col 214, Douglas Hogg (Conservative, Sleaford and North Hykeham); col 217, Tony Benn (Labour, Chesterfield); col 222, David Lidington (Conservative, Aylesbury), 14 December 1999.

51. 341 HC Official Report (6th series) cols 174–175, 14 December 1999.

52. There was nonetheless a certain governmental hostility to judicialization. Charles Clarke remarked that Simon Hughes seemed to think that: ‘if we put our problems in the hands of a lawyer, we shall have a better society; but I am not convinced. Indeed, I believe many aspects of life would be better out of their hands.’ Standing Committee D, 25 January 2000.

53. See eg Standing Committee D, 25 January 2000.

54. Standing Committee D, 27 January 2000.

55. See eg his contributions at 613 HL Official Report (5th series) cols 228, 255, 260, 270–272, 16 May 2000.

56. Eg 613 HL Official Report (5th series) col 221, Lord Beaumont of Whitley; col 223, Lord Taylor of Gryfe; col 752, Lord Goodhart; col 650, Lord Avebury; cols 676–677, Lord Lloyd of Berwick; col 679, Lord Cope of Berkley; col 691, Lord Dubs, 16 May 2000. The government response had an immature feel to it: Lord Bassam of Brighton warned that peers should have careful regard for the human rights issues raised by Lord Lester. The House, he said, should reflect on them; he vowed to read Hansard carefully. This deference suggests the government lacked confidence and familiarity with the Convention rights.

57. Lord Goodhart 614 HL Official Report (5th series) col 1453, 16 July 2000.

58. 613 HL Official Report (5th series) col 1049, Lord Mayhew of Twysden; col 10, Lord Cope of BerMey, 6 June 2000.

59. It was significant that Conservative peers utilised rights-talk.

60. T v United Kingdom, V v United Kingdom (2000) 30 EHRR 121.

61. 341 HC Official Report (6th series) cols 397–399, 16 December 1999.

62. Douglas Hogg 341 HC Official Report (6th series) col 405, 16 December 1999.

63. Eric Forth 341 HC Official Report (6th series) col 406, 16 December 1999.

64. Desmond Swayne 341 HC Official Report (6th series) col 407, 16 December 1999.

65. 341 HC Official Report (6th series) col 403, 16 December 1999.

66. For a general critique of the legislation, see A Tomkins ‘Legislating against terror: the Anti-Terrorism, Crime and Security Act 2001’ [2002] PL 202; H Fenwick ‘The Anti-Terrorism, Crime and Security Act 2001: A Proportionate Response to 11 September?’ (2002) 65 MLR 724.

67. ‘Each country must evaluate the risk that it perceives and make a judgment about the measures that are necessary, which is what we are doing here’: 375 HC Official Report (6th series) col 127, 19 November 2001.

68. Soering v United Kingdom (1989) 11 EHRR 439; Chahal v United Kingdom (1996) 23 EHRR 413.

69. Beverley Hughes, Parliamentary Under-Secretary of State for the Home Department, 375 HC Official Report (6th series) col 147, 19 November 2001.

70. 628 HL Official Report (5th series) col 885, 19 November 2001. Later his Lordship ruefully observed that most other European countries had had the sense to enter reservations to the ECHR before agreeing to be bound by it, whereas the UK had not: 629 HL Official Report (5th series) col 156, 27 November 2001.

71. Beverley Hughes, 375 HC Official Report (6th series) col 115, 19 November 2001. See similarly Caroline Flint (Labour, Don Valley), who considered that the House's decision involved ‘striking a balance between preserving the freedoms that we all cherish and recognising the threat that we face today’: col 93, 19 November 2001.

72. 375 HC Official Report (6th series) cols 128 and 129, 19 November 2001.

73. 375 HC Official Report (6th series) col 115, 19 November 2001.

74. Eg Piara Khabra (Labour, Ealing Southall) 375 HC Official Report (6th series) col 97, 19 November 2001.

75. Eg Jeffrey Donaldson (UUP, Lagan Valley) 375 HC Official Report (6th series) col 86, 19 November 2001.

76. 375 HC Official Report (6th series) col 354, 21 November 2001.

77. George Osborne 375 HC Official Report (6th series) col 107, 19 November 2001.

78. Vernon Coaker (Labour, Gedling) 375 HC Official Report (6th series) col 108, 19 November 2001.

79. David Cameron (Conservative, Witney) 375 HC Official Report (6th series) col 145, 19 November 2001.

80. The House was only permitted two days to discuss amendments to a 125-clause Bill.

81. 375 HC Official Report (6th series) col 345, 21 November 2001.

82. See n 68 above.

83. 375 HC Official Report (6th series) col 49, 19 November 2001.

84. 375 HC Official Report (6th series) col 133, 19 November 2001.

85. 629 HL Official Report (5th series) col 274, Baroness Buscombe; col 156, Lord Dixon-Smith, 27 November 2001.

86. Eg by Lord Mayhew of Twysden, who considered that even if such an approach worked, he would find it disreputable and unworthy: 629 HL Official Report (5th series) col 196, 27 November 2001.

87. 628 HL Official Report (5th series) col 190, 21 November 2001.

88. 629 HL Official Report (5th series) col 198, Lord Jenkins of Hillhead; col 194, Lord Mayhew of Twysden; col 282, Baroness Williams of Crosby, 27 November 2001.

89. Eg the Earl of Northesk 629 HL Official Report (5th series) col 252, 27 November, 2001.

90. Eg Lord Harris of Haringey 629 HL Official Report (5th series) col 258, 27 November 2001.

91. (1611) 12 Co Rep 74.

92. Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147.

93. 384 HC Official Report (6th series) col 355, 24 April 2002.

94. 384 HC Official Report (6th series) col 375, 24 April 2002.

95. 636 HL Official Report (5th series) col 1125, 24 June 2002.

96. Lord Avebury 637 HL Official Report (5th series) col 1054, 15 July 2002.

97. Lord Dholakia 637 HL Official Report (5th series) col 1328, 17 July 2002.

98. Lord Filkin 637 HL Official Report (5th series) col 1331, 17 July 2002.

99. Lord Bassam of Brighton 637 HL Official Report (5th series) col 1337, 17 July 2002.

100. Lord Filkin 637 HL Official Report (5th series) col 1383, 17 July 2002.

101. International Transport Roth GmbH v Secretary of State for the Home Department [2002] EWCA Civ 158, [2002] 1 CMLR 52.

102. 637 HL Official Report (5th series) cols 1355 and 1366, Earl Attlee; cols 1358–1360, Lord Filkin; cols 1370–1372, Lord Berkley, 17 July 2002.

103. There was discussion, for instance, of access of asylum seekers to competent legal advice, of reimbursement of travelling expenses to see lawyers, and of the need for independent centres to provide ‘country risk assessments’, without any mention of Article 6. Similarly there was a remarkable absence of references to Article 8 when the House came to discuss the government's proposed withdrawal of ‘support-only’ benefit for asylum seekers, whereby they would elect to live with family rather than opt for ‘support-plus-accommodation’ benefit and be sent further afield.

104. Bill 182, House of Commons, 2002.

105. [2001] UKHL 25, [2001] 2 WLR 1546.

106. 388 HC Official Report (6th series) col 174–6, 16 July 2002.

107. The test of admissibility is now whether evidence of previous sexual history (and questioning in relation to it) is so relevant to the issue of consent that to exclude it would endanger a fair trial under Article 6 ECHR. For critique see Nicol’ Statutory Interpretation and Human Rights after Anderson‘, n 6 above.

108. O Letwin, J Marenbon and M Howe Liberty Under the Law (London: Politeia, 2002); O Letwin ‘In the future, your rights could easily become my wrongs’Daily Telegraph, 29 October 2002.

109. 391 HC Official Report (6th series) col 605, 28 October 2002.

110. 391 HC Official Report (6th series) cols 605–615, 28 October 2002.

111. 391 HC Official Report (6th series) col 624, 28 October 2002.

112. David Blunkett's approach to public law was readily apparent from the start of his tenure of the Home Office. In answer to a question from Bridget Prentice (Labour, Lewisham East) asking him to take ‘an even more robust approach … on judicial review’, he replied: ‘[d]ebate in the House and the securing of freedoms through political action must always be preferable to falling back on those who are not elected, who are not accountable and who often cannot respond quickly or sensitively to a particular threat. That is why parliamentary and participatory democracy is the better safeguard, rather than relying on jurisprudence’: 372 HC Official Report (6th series) col 928, 15 October 2001.

113. The Times, 27 January 2003.

114. R (Q) v Secretary of State for the Home Department [2003] EWHC 195, upheld on appeal [2003] EWCA Civ 346, [2003] 2 All ER 905.

115. The Times, 20 February 2003.

116. Daily Mail, 20 February 2003 and Daily Express, 20 February 2003 respectively.

117. [2002] UKHL 46, [2003] 1 AC 837.

118. Daily Telegraph, 26 November 2002.

119. Guardian, 26 November 2002.

120. The Times, 26 November 2002.

121. Daily Telegraph, 26 November 2002. Conservative newspapers reflected the constitutional disagreements: The Times characterised the judgment as ‘part of a process by which influence is slipping away from politicians and the electorate towards the men in wigs’ and argued that judges were living under an illusion that they could assume legislative authority whilst resisting politicisation (26 November 2002); the Daily Telegraph - whilst sympathetic to the merits of the decision - condemned the practice of law-making by judicial fiat, arguing it was wrong for judges to challenge the declared will of Parliament (26 November 2002). Approving David Blunkett's proposed remedial legislation, the Daily Express considered that he was ‘right to defy the Law Lords … A Home Secretary, an elected representative, is often more in touch than judges, who time and time again have made inappropriate sentences’: Daily Express 26 November 2002.

122. Today programme, BBC Radio 4, 7 May 2003.

123. Daily Mail, 8 May 2003; Daily Express, 8 May 2003.

124. Independent, 8 May 2003, Blunkett retorted that the Bar Council's President had ‘lost the plot’: The Times, 15 May 2003.

125. Daily Express, 15 May 2003.

126. The Times, 7 June 2003. Lord Woolf argued that the government's proposals for longer minimum jail terms for murderers would be felt throughout the system in the form of longer sentences for other offenders.

127. Daily Telegraph, 8 May 2003.

128. Feldman, n 7 above, at 347.

129. Recall that this argument was the centrepiece of the Conservative amendment to the Second Reading of the Human Rights Bill.

130. Shapiro and Stone Sweet, n 3 above, p 136.

131. Stone Sweet, n 2 above, pp 38–39.

132. On the other hand, the continental constitutions - Stone Sweet focuses on the French, German, Italian and Spanish ones - do provide that the constitutional court/council is the authoritative interpreter of the constitution, and that its decisions are binding on all public authorities.

133. This is common political behaviour. For example, in the case of the European Economic Community the original six member states probably only half realised the immensity of the constitutional changes they had embarked upon, not least in terms of the empowerment of the ECJ and the national courts. The same was true of UK accession. See Nicol, n 5 above, p 253.

134. Sir Gerald Fitzmaurice dissenting, Marckx v Belgium (1979) 2 EHRR 303 at 366.

135. Stone Sweet, n 2 above, p 88.

136. (1996) 21 EHRR 97.

137. Arguments for entrenched rights are often constructed on the need to deal with majoritarianism. To exploit a temporary majority to foist on a polity values on which there is irreconcilable disagreement between the two parties which tend to form governments, would surely constitute majoritarianism at its worst.

138. ‘Law and Democracy’ [1995] PL 72.

139. J Allen ‘Effect of a Statutory Bill of Rights where Parliament is Sovereign: The Lesson from New Zealand’ in T Campbell, K Ewing and A Tomkins (eds) Sceptical Essays in Human Rights (Oxford: Oxford University Press, 2001) pp 388–389.

140. It also requires the repeal of the ‘fast track procedure’ in s 10 of the HRA, and the enactment of all remedial measures by the full statutory procedure, which permits MPs to put forward amendments at the Committee stage.

141. J Heibert ‘Wrestling with Rights: Judges, Parliament and the Making of Social Policy’ (1999) 5 Choices 18.

142. Manfredi, n 20 above, pp 176–181.

143. See Nicol ‘Are Convention Rights a No-Go Zone for Parliament?’, n 6 above.

144. The phrase belongs to Lord Bingham of Cornhill in R (Anderson) v Secretary of State for the Home Department [2002] UKHL 46, [2003] 1 AC 837 at [30]. For an example of ‘judicial vandalism’ in action, see R v A (No 2) [2001] 2 WLR 1546, especially at [46]; for comment see Nicol, n 107 above.

145. S Fredman ‘Scepticism under Scrutiny’ in Campbell, Ewing, Tomkins (eds), n 139 above, pp 204–205.

146. Eg S weden's referendum on the euro and retention of its own currency is ultra vires the EC Treaty since Sweden, unlike Denmark and the UK, has no ‘opt-out’ from the third stage of economic and monetary union.

147. Indeed, in the case of the Convention - in contrast to EC law - such flexibility would be facilitated by the lack of doctrines of supremacy and direct effect. On the (diminishing) constitutional differences between ECHR law and EC law, see D Nicol ‘Lessons from Luxembourg: Federalisation and the European Court of Human Rights’ (2001) 26 EL Rev 3.

148. The notion advanced by some judges, and seemingly endorsed by Lord Falconer LC (Independent, 4 December 2003), that ministers should be prevented by statute from criticising court judgments, would undermine contestatory democracy since, by cocooning the judiciary from criticism by politicians, it would prevent ministers explaining governmental unwillingness to change the law in response to a s 4 declaration, something which necessarily involves disagreeing with judicial decisions.

149. Waldron, n 19 above, p 311.

150. Above n 16.

151. R (Daly) v Secretary of State for the Home Department [2001] 2 WLR 1622 at [28].

152. See generally J Waldron The Dignity of Legislation (Cambridge: Cambridge University Press, 2001).

153. Magor and St Mellons Rural District Council v Newport Corpn [1951] 2 All ER 839.

154. Louis Blom-Cooper QC, Channel 4 News, 7 May 2003.

155. See n 138 above.