[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.