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Judging democracy

Judges are neither elected nor politically independent - so they should not be treated as such.

Jon Holbrook

Topics Politics

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The Queen’s Speech on 26 November confirmed the government’s intention to reform the constitution by establishing a Supreme Court, reforming the judicial appointments system and abolishing the current office of Lord Chancellor (1). When these reforms were first proposed in June 2003, prime minister Tony Blair caused uproar by linking them to a cabinet reshuffle. Traditionalists, conservatives and other government critics argued that constitutional reform shouldn’t be carried out as a hasty add-on.

The government responded by producing consultation documents dealing with its proposals, and for a time the disquiet abated (2). But by the autumn some members of the judiciary had become concerned that their independence could be compromised if the office of Lord Chancellor no longer existed to protect them, if judicial appointments were influenced by political appointees in the proposed Judicial Appointments Commission, and if the new Supreme Court was not properly resourced. The Deputy Chief Justice, Lord Justice Igor Judge, even found it helpful to remind his audience of Hitler’s democratic rise to power in a speech about the importance of judicial independence (3).

A few weeks later only four of the 12 Law Lords backed the government’s proposal to create a Supreme Court in place of the House of Lords. On 2 December 2003, the House of Lords defeated the government’s plans for constitutional change. The government was undeterred; according to one newspaper headline, it was ‘ready to take on lords and judges’ (4).

The irony here is that the very reforms that the government is promoting to enhance judicial independence are being criticised by the judiciary for undermining judicial independence. But while both sides to this debate are arguing over whether judicial independence is either enhanced or undermined, the more pertinent question is whether judicial independence is good for democracy.

The judiciary should clearly be independent of the parties who appear before it – as the judicial oath states, judges must apply the law ‘without fear or favour, affection or ill will’. This is a form of personal independence.

But when today’s reformers talk of ‘judicial independence’ they are referring to political, rather than personal, independence. Lord Falconer says in his foreword to ‘Constitutional Reform: A New Way of Appointing Judges’ that the process of judicial appointments must not become ‘part of the political process’. Hence the government is proposing to weaken its link with the judicial appointments process by giving many of its powers to a newly created Judicial Appointments Commission.

But the notion of judicial independence goes further than merely desiring that judges be appointed in a more independent manner. The government’s view is that judges could be tainted with a political identity if: (a) a member of the executive, the Lord Chancellor, appoints judges; (b) this same member of the executive sits as a judge, as the Lord Chancellor is entitled to do; and (c) if members of the judiciary have a legislative role, as the Law Lords do by virtue of being members of the House of Lords. The aim is for judges to be above politics, which is achieved by separating judicial roles from those of the executive and legislature.

In practical terms, none of these proposed changes is earth-shattering. The Law Lords rarely exercise their right to speak in House of Lords debates, especially on controversial legal issues. Moving a dozen or so judges from the House of Lords down the river to Somerset House (or somewhere similar) would be more likely to raise questions about suitable dining facilities than about constitutional propriety. Lord Chancellors rarely sit as judges, and when they do so it is usually as one of a panel of five judges.

However, it is the belief that the judiciary should be independent of politics that is significant here. Historically, the judiciary has been intimately connected with politics. In the late nineteenth century the government controlled the judicial appointments process in a more direct way, by appointing judges who shared its perspective. Over 100 years ago the then prime minister Lord Salisbury described an ‘unwritten law of our party system…that party claims should always weigh very heavily in the disposal of the highest legal appointments’ (5). Following this approach Lord Salisbury’s Lord Chancellor, Lord Halsbury, filled the judicial benches with barristers of a Conservative mentality. He took the view that ‘within certain limits of intelligence, honesty and knowledge of the law, one man would make as good a judge as another, and a Tory mentality was ipso facto more trustworthy than a Liberal one’ (6).

In the 1970s, Edward Heath’s Tory government sought to use the judiciary to control trade union militancy, by creating a National Industrial Relations Court with Sir John Donaldson, a former Conservative electoral candidate, as its president. Sir John Donaldson duly discharged his brief by imprisoning strikers. But when Lord Denning in the Court of Appeal took a more gentle approach, the Lord Chancellor of the day, Lord Hailsham, summonsed Lord Denning to explain his actions (7). Today it is inconceivable that the current Lord Chancellor, Lord Falconer, could summons the current Master of the Rolls, Lord Phillips, to explain his judgements – unless he wanted to create a constitutional crisis.

When Lord Halsbury justified filling the judicial bench with judges of a ‘Conservative mentality’ he drew attention to the fact that there were many people who had the technical ability to be a judge. If assessed by Halsbury’s standard of ‘intelligence, honesty and knowledge of the law’, plenty of people today would be eligible for judicial appointment. But whereas Lord Halsbury preferred Tories to Liberals, today’s appointing panels would be abhorred at the idea that politics could be relevant.

The change in approach is all the more surprising given the more political role played by today’s judiciary. Consider the increasing use of judicial review to challenge the policies of public bodies (these challenges are often referred to ‘administrative law’ or ‘public law’ challenges). Few cabinet members can today avoid a judicial review of their policies. Home secretary David Blunkett is receiving judicial challenges, particularly around his policies on sentencing, asylum and combating terrorism.

Even Tony Blair was challenged last year by the Campaign for Nuclear Disarmament (CND) when it alleged that he had no legal right to go to war against Iraq (8). As a recent textbook on judicial review observed: ‘The judges have established judicial review as an almost boundless jurisdiction over almost every kind of government activity.’ (9) Yet a similar textbook written 50 years earlier drew attention to the subservient role that judges played to elected bodies: ‘some judicial utterance [shows] a certain lack of self-confidence in the ability of the court to intervene effectively in the administrative process, a readiness on the part of judges to leave public administration to be regulated by parliament and public authorities, a fear of intruding on the province of elected authorities or responsible ministers in questions of policy’ (10).

Even cases that are not overtly political frequently raise issues of a contentious moral or social nature. For example, the House of Lords recently considered whether Congleton Borough Council had been negligent towards John Tomlinson, when he visited one of its outdoor parks, jumped in the water and broke his neck (11). The House of Lords disagreed strongly with the Court of Appeal and found the Council to be not liable. Lord Justice Sedley had said in the Court of Appeal that the owner of land (referred to as ‘the occupier’) is liable to an injured visitor unless ‘the risk is so obvious that the occupier can safely assume that nobody will take it’. In the House of Lords, Lord Hoffmann stated that ‘I find it difficult to express with appropriate moderation my disagreement with [this] proposition’. This divergence of opinion does not mean that Lord Hoffmann is more ‘intelligent, honest or knowledgeable of the law’ than Lord Justice Sedley – it means that each has different attitudes towards risk and personal responsibility.

There is an absence of consensus on many social issues today, and this is one reason why courts are being asked to decide where the boundaries of responsibility lie. As more disputes of a political, social or moral nature are fought out in court, the workload of the highest court in the land, the House of Lords, has increased considerably. In 1953 the House of Lords heard only 19 cases (half of them relating to tax law) (12). Given its scarcity of cases, in 1963, Gerald Gardiner, who later became Lord Chancellor, recommended the abolition of the House of Lords as a judicial body. In 2001, the House of Lords heard 71 cases on a wide variety of issues.

Many members of the judiciary have been quick to welcome their enhanced position; indeed, some see their modern interventionist role as an essential aspect of modern democracy. Lord Woolf, now the Lord Chief Justice, wrote in 1995: ‘there are even limits on the supremacy of parliament which it is the courts’ inalienable responsibility to identify and uphold. They are limits of the most modest dimensions which I believe any democrat would accept.’ (13) And Lord Justice Sedley claimed that Dicey’s concept of parliamentary sovereignty had given way to: ‘a bi-polar sovereignty of the Crown in parliament and the Crown in the courts, to each of which the Crown’s ministers are answerable – politically to parliament, legally to the courts.’ (14)

One might have expected the government to attempt to stem the judiciary’s growing role. After all, it is the government that is supposed to govern – and unlike the judiciary it has a democratic mandate to do so. As the recipient of many adverse judicial review decisions, David Blunkett has occasionally criticised the judiciary for intervening in government policy. But Blunkett’s response has been muted, especially in comparison to that of previous Tory home secretary Michael Howard. In the early 1990s newspapers were full of stories about the conflict between judges and the government. One civil servant was reported in The Times (London) as saying that ministers were ‘gunning for judges’, and a judge was reported as saying that the government was running ‘a hate campaign…to pour poison on the views of the judiciary’ (15).

Tony Blair’s government can hardly be accused of gunning for judges. Prior to Lord Falconer’s latest round of proposed constitutional reforms the government championed the incorporation into domestic law of the European Convention on Human Rights. This was secured with the Human Rights Act 1998 – an Act that gave considerable powers to the country’s judges to interpret statues in ways that may not have been intended by parliament, and also to make new laws. In the run-up to the incorporation of the Act, two Law Lords, Lord Bingham and Lord Hoffmann, delivered public lectures calling on the courts to develop a law of privacy if parliament did not do so (16). The government responded that it was not prepared to legislate on privacy, indicating that it would give responsibility for this issue to the courts. So at an early stage the Blair government made it clear that it was content to leave contentious issues thrown up by the Human Rights Act to judges.

Instead of reasserting itself against the judiciary, the government has announced its intention to change the constitutional position of the judiciary by enhancing its ‘independence’. By loosening its control over the judiciary, the government is effectively freeing it up to play a more political role. This is a policy that devalues democracy. It takes important political, moral and social decisions out of the hands of elected representatives, and places them in the hands of unelected members of the judiciary.

Political decisions will be taken by judges cast not as politicians, but as independent experts whose expertise is derived from the personal values of intelligence, honesty and knowledge of the law. This is not politics as we know it. It is not a matter of views canvassed as part of a political programme and subjected to popular debate. Instead, this is a politics that is to be fought out in the courtroom by lawyers who profess to advocate a technical understanding of the law.

Given their elevated role, it is hardly surprising that, as Christina Odone noted recently in the Observer: ‘now the coolest profession is the law.’ (17) And while lawyers are active subjects the public is a passive observer. The Hutton Inquiry into the circumstances surrounding Dr David Kelly’s death is a recent example of the new judicial politics – Lord Hutton was appointed as an expert on the basis of his forensic skills, impartiality and independence.

Judges, of course, can never be truly independent of politics. Like all of us they have their views, values and political beliefs. By enhancing the notion that judges are politically independent, the government’s reforms will give the judiciary’s views and values greater sway. Sitting in a newly created Supreme Court with no legislative function and on the basis of an appointments process that is supposedly above politics, judges will be free to champion the political role they have developed in recent years. Given Lord Woolf’s view that ‘there are even limits on the supremacy of parliament which it is the courts’ inalienable responsibility to identify and uphold’, any democrat should be concerned at this development.

Jon Holbrook is a barrister (email jon.holbrook@btinternet.com)

This article is based on a lecture given in October 2003 for the Institute of Ideas.

(1) Text of the Queen’s Speech, Guardian, 26 November 2003

(2) Constitutional Reform: reforming the office of the Lord Chancellor, Department for Constitutional Affairs, 18 September 2003; Constitutional Reform: a Supreme Court for the United Kingdom, Department for Constitutional Affairs, 15 July 2003; Constitutional reform: a new way of appointing judges, Department for Constitutional Affairs, 15 July 2003

(3) Heroes and villains, Lord Justice Igor Judge, a speech to the Society of Editors’ Annual Conference, 13 October 2003

(4) Blair ready to take on lords and judges, Clare Dyer and Michael White, Guardian, 27 November 2003

(5) The English Judges: Their Role in the Changing Constitution, Robert Stevens, Hart Publishing, 2002, p14

(6) Lives of the Lord Chancellors 1885-1940, RFV Heuston, Clarendon Press, 1964, p52

(7) The English Judges: Their Role in the Changing Constitution, Robert Stevens, Hart Publishing, 2002, p86

(8) The Campaign For Nuclear Disarmament v (1) The Prime Minister Of The United Kingdom, (2) The Secretary Of State For Foreign & Commonwealth Affairs and (3) The Secretary Of State For Defence, 17 December 2002

(9) Administrative Law, William Wade and Christopher Forsyth, Oxford University Press, 2000; quoted in Speech by the Rt Hon David Blunkett MP to the Institute for the Study of Civil Society (.pdf 119 KB), 25 October 2001

(10) Justice and Administrative Law, William Robson, 1951; quoted in Speech by the Rt Hon David Blunkett MP to the Institute for the Study of Civil Society (.pdf 119 KB), 25 October 2001

(11) Tomlinson v Congleton Borough Council, [2003] UKHL 47, 31 July 2003

(12) The English Judges: Their Role in the Changing Constitution, Robert Stevens, Hart Publishing, 2002, p27

(13) ‘Droit Public – English Style’, Harry Woolf, Public Law, 1995, p57-58

(14) The English Judges: Their Role in the Changing Constitution, Robert Stevens, Hart Publishing, 2002, p60

(15) The English Judges: Their Role in the Changing Constitution, Robert Stevens, Hart Publishing, 2002, p71

(16) The English Judges: Their Role in the Changing Constitution, Robert Stevens, Hart Publishing, 2002, p53

(17) ‘Once journalists were heroes. Now the coolest profession is the law’, Christina Odone, Observer, 21 September 2003. It is likely that the traditional flow of barristers from the bar to parliament has slowed in recent years and that many who would previously have taken that route will now develop their ‘political’ careers at the bar

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Topics Politics

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