HAMLYN - College of Social Sciences and International Studies ...

Human Rights
The Supreme Court of Canada, in the context of the Canadian
Charter of Rights and Freedoms, said that there are cases in:
"the social, economic and political spheres where the legislature [or
other authorised person] must reconcile competing interests in
choosing one policy among several that might be acceptable." 61
In those circumstances,
"the courts must accord great deference to the legislature's choice
because it is in the best position to make such a choice , . . [T]he
courts are not specialists in the realm of policy-making, nor should
they be. This is a role properly assigned to the elected representatives
of the people . . ."«
The Strasbourg Court has said that the extent to which the
margin of appreciation operates varies according to the context,
63 and the United Kingdom courts will need to develop a
sense for the appropriate scope for deference to decision-making
in areas of policy of the executive, the legislature and other
organs and institutions. The judges will not be thanked for
needlessly destabilising existing systems that were working
perfectly well. A case in point was the recent startling decision
of the Scottish appeal court retrospectively invalidating the
appointment of all the 120 or so temporary part-time undersheriffs
who handled 25 per cent of all the work in the sheriff
courts. 64 The court struck down the system of probationary
appointments, thereby creating serious disruption to the administration
of justice despite the fact that there was no evidence
61 Libman v. A.G. of Quebec (1983) 3 B.H.R.C. 269 at 289, para. 59.
62 ibid., at para. 60.
63 See for instance Buckley v. United Kingdom (1996) 23 E.H.R.R. 101.
64 Starrs v. Procurator Fiscal, Linlithgow, The Times, November 17, 1999. Undersheriffs,
who handle 25 per cent of the work of sheriff courts, are appointed by
the Lord Advocate, who is also in charge of the prosecution system.
Appointments are from year to year and can be terminated without any set
procedure. The Scottish Court of Criminal Appeal held that a judge who has
no security of tenure and whose appointment was subject to annual renewal
was not "independent" within the meaning of Art. 6 of the ECHR. The
decision has menacing implications for many forms of part-time or temporary
judicial appointment which are used extensively in the U.K. system. The Lord
Chancellor may, for instance, withdraw an Assistant Recorder's authorisation
to sit "at any time if he considers this to be in the public interest". (LCD,
Judicial Appointments, March 1999, p. 19.)
94