[This is a republication of my article in this week’s New European].
It wasn’t Brexit that invented attacks on the judiciary.
Ten years ago Prime Minister Blair said of a High Court Judge that he had “taken leave of his senses”. The Express also weighed in, describing the Judge’s decision as “tantamount to a judicial coup against Parliament.” That same year The Sun criticised “the arrogance of judges in their mink-lined ivory towers” – I assume time has been unkind to that metaphor – over the sentencing of the child molester Craig Sweeney. And the then Lord Chancellor, Charlie Falconer, was widely criticised for his slow and feeble defence of the judiciary. More recently Theresa May herself – as Home Secretary – criticised Judges for, as she put it, “ignor[ing] parliament when they think it came to the wrong conclusion.”
But we didn’t feel imperilled by it then. So why do we now?
Brexit, of course, bears upon our lives more directly than the Secretary of State’s immigration policy – or a paedophile’s jail term. But there is something more.
Our times upset the applecart. The thoughtful pluralism of the broadsheet Fourth Estate feels no match for the vigour of the Red Tops. In Parliament, the Burkean ideal of representative democracy has up and gone, capitulated. And Her Majesty’s Opposition is only so in name.
The consequence is that to have voted Remain is to feel yourself cast as unwitting participant in a Brexiteerian psychodrama. Who will restore us our agency?
We find our unlikely heroes in what Lord Devlin, giving a lecture to the LSE in 1975, described as a “body of elderly man who have lived on the whole unadventurous lives… old-fashioned in their ideas.” And we throw ourselves in the path of their attackers who take, today as since time immemorial, the form of the Executive and the Press. But what are we to make of the allegation that they failed to respect the will of the people?
I leave to others an analysis of whether that is true of the Article 50 case. Let me tackle, instead, the predicate. It is right judges should be more responsive or accountable?
Fortunately this question was considered by a grand Committee of Lords back in 2007. The case for was put by, among others, the Daily Mail’s Editor, Paul Dacre. Our times, he no doubt rightly observed, are characterised by a lack of reverence. He observed a public that has “great faith in the judiciary but there are worries that it is not reflecting their values and their instincts” and judges making political judgments.
He wanted a strong judiciary: “the free press needs an independent judiciary in the extreme. If I may be so bold, the judiciary needs a free press to support it against an over-powerful executive. The two can help each other.” But his suggestion was that judges become a little less Olympian and a little more responsive to public concerns, a little more media savy.
There are profound dangers in this course – but also opportunities too.
Judges are not democratically elected. Their legitimacy derives not from their responsiveness to democratic demands but, in a sense, their irresponsiveness. Parliament makes the law. The Government applies the law. The role of judges is to ensure that they do. And the closer they bind to this narrow role the greater their legitimacy; the further they leave it behind the greater the deficit.
Giving evidence to that same Committee, Sir Igor Judge pointed out that:
“The independence of the judiciary is something which is precious to every single member of the community. You must be able to go into court and know that the person sitting in judgment is neutral – not on one side or the other – coldly applying the law that applies to your case.”
For judges to become more responsive to public instincts would mean them giving up that neutrality. And it would also deliver more power to those who channel – or create – those public demands, both the media and the Government. And if judges bend to those instincts who is to police their limits?
It’s apposite, writing on a day when America elected a new President to remember the words of an earlier one, often referred to as the Father of the Constitution, James Madison.
“The accumulation of all powers, legislative, executive, and judiciary, in the same hands… may justly be pronounced the very definition of tyranny.”
But there is something to take from what Dacre suggests.
Judges are, usually at least, keenly aware of the impact of their decisions on public perceptions of themselves and the law. Certainly those who heard the Article 50 case went to almost painful lengths to avoid controversy. The very first paragraph of their summary states: “The court is not concerned with and does not express any view about the merits of leaving the European Union: that is a political decision.” They could sensibly do no more.
But there is no good reason why Judges should not appoint a spokesman to perform that job for them the function of explaining to the media their decisions. This is an age of democratic irreverence. Those who have held power have failed equably to distribute its fruits. It is right that the establishment is held vigorously to account. And it ignores its duty to be responsive at its, and sadly our, peril.
Waiting for Godot 
One of the problems with judges as I see it is that there is no mechanism for strange decisions to be challenged in any way.
Two cases spring to mind. The first was where someone who could see just 7 feet without glasses and then killed someone with his car was told by Mr Justice Marron that there was no legal requirement for him to wear his glasses. The law quite clearly states that to drive a car, one must be able to read a new style number plate at a distance of 20.5 metres. If corrective lenses, in the shape of glasses, improve vision from 7 feet, a little over 2 metres, to the legal minimum, then by definition, the law requires those lenses to be worn.
The other case was Mr Justice Bean who ruled that swearing at a policeman was no longer either an offence or offensive because they would have heard all the naughty words before. Doubtless judges have too, but I rather fancy that If Mr Bean had be so addressed in his court, the offender would have been swiftly dealt with for contempt of court.
If the court is insulted, the offender is instantly punished, but the same rules do not apply to the office of constable, holders of the Queen’s Warrant. Bear in mind that the same individual is being dealt with by both police and the courts. As far as I am concerned, the Queen is being sworn at and insulted via the holder of her Warrant and this is intolerable.
I feel that both of the cases above are misguided at best. What mechanism is there for such people to be quality controlled apart from an endless cycle of appeals which are hugely expensive and very slow? Are judges who continue making weird decisions left to continue on their merry way for as long as they wish or is there a mechanism for quietly retiring or re-training them?
What, aside from an appeal?
Who else looks after the bedrock of our laws (” The common law is multi-faceted and remains the bedrock of the English legal system.” Lady Hale)?
Parliament cannot, now, be entrusted with it as it has evolved into a mechanism of Crown governance.
The Judiciary’s “independence” is also independent from any residual influence of abuse of the Crown Prerogative, which is in opposition not only to Parliament, but also to the common law.
It is long settled that the Crown, including the Crown in Parliament or in Government, can only modify the Common Law by statutory act against the laws asserted by the Body Politic in opposition to any residual risk of arbitrary inclinations of a monarch, or government.
Conferring the protection to Parliament might be an ideal idea, but unfortunately, the executive, HMG, is only controlled ex post facto by Parliament, Did Parliament control Dave Hartnett when he quite deliberately acted in contravention of a fundamental common law principle, on the assumption that it was hiding behind a web of statutory interfaces?
In other words the independence of et Judiciary is the only protection of the bedrock of our laws and constitution, the Common Law when all else fails.
This is not the first era in which the judiciary have faced heavy criticism from the press. There was plenty of vocal criticism of judges in the seventeenth and eighteenth centuries, as they became enmeshed in a very turbulent political process.
In any case, the last twenty years have seen activist judges playing…..and clearly enjoying playing…..the role of unelected quasi-legislators. This mission creep goes to the very top of the judicial tree. Even if one accepts this trend, it rightly comes at the price of greater and often hostile scrutiny of judges. None of this would be news in the US where the Supreme Court has always been an overtly political and quasi-legislative body.
Thanks for the article. I find your idea of a spokesperson explaining their decisions to the media appealing, and in light of recent events perhaps desirable. But surely the first port of call for this job should be the Lord Chancellor, who should be able to defend and represent the judiciary when they can’t – of course it is a role she has conspicuously failed at in recent days.
I second Alex’s (above) comments and thank you for your blogs and also your compelling twitter feed. The public need to know how the judiciary operates and their neutrality must be transparent and well-publicised. I also like your idea of a spokesperson to the media. Make it social media, too! The Lord Chancellor is not defending the role of the judiciary because she is weak, and she is weak because the Prime Minister is weak and not leading. Here’s to our strong, under-stated and impartial judiciary!