What are judges for?
The first Catholic to become Lord Chief Justice of England was Charles Russell, in 1894, a man whose benignly Victorian image looked down on me almost every day of my teenage life. He was by a long way my Dublin secondary school’s most famous old boy from the days before Independence and his portrait hung in the school hall. I ate and drank with Russell for five years, often wondering what he was for and how on earth he had got to where he had from our common starting point in a Dublin suburb.
Russell’s reputation was made by his brilliant defence of the Irish Nationalist MP Charles Stewart Parnell before the Special Commission set up after publication in the Times of what we now know as the Pigott forgeries. (These were documents which quite wrongly linked Parnell to the murder in 1882 of two leading members of the British Administration in Ireland.) The Commission was a ruse devised to destroy Parnell’s reputation, and one into which I am sorry to say three judges allowed themselves to be cajoled. The Special Commission Act 1888 explicitly named the three who were assigned to the task: Sir James Hannen, President of the Probate, Divorce and Admiralty Division of the Court of Appeal; and Sir John Day and Sir Archibald Levin Smith, both from the High Court: ‘Unionists to a man,’ as Roy Jenkins describes them in his Life of Gladstone. But what were these judges thinking of, presiding over a tribunal to which none of the ordinary rules applied, set up for a manifestly political purpose – namely, to add a veneer of judicial legitimacy to a crude act of political power?
Of course this was not the last time that senior English judges were to be brought into extra-judicial contact with the Irish problem. (Regular press reports from Derry remind us of an ill-fated judicial investigation thirty years ago.) It seems at times that judges do not quite realise that their status and standing make them attractive fig-leaves behind which other persons, much less highly principled, can hide, fig-leaves which can then be cast off when no longer required. Like Hannen, Day and Levin Smith, Lords Parker and Widgery, for example, are now remembered as much for their reports on aspects of security practice in Northern Ireland as for anything they achieved as successive Lord Chief Justices. The memory is not a warm one.
This whole question of extra-curricular public service by judges – in public inquiries, commissions and so on – is one that has not been properly explored. Increasingly in recent years, judges have been asked to perform all manner of public duties way beyond the confines of the courtroom, sometimes suggesting new laws, sometimes enquiring into past tragedies, sometimes a combination of both. The costs and benefits of these activities from a public interest perspective have not been seriously addressed. It is in many ways reassuring to be able to call on the services of a senior and respected judge in this way. But is it wise to tie up senior judicial figures in inquiries that may take years to conclude and which are not guaranteed to produce any government response (or which produce only a partial government response) even when their reports emerge? Is it not the job of the Civil Service rather than the judiciary to produce policy options for ministers on proposed changes of the law, even where the catalyst for change is some catastrophe? Could public inquiries not be conducted by inspectors belonging to a pool of experts from which the right person could be drawn at the right time? Why prepare people for years for a particular task and then set them a whole series of quite different and unexpected challenges, for which it is possible that they are ill-equipped?
The arguments are finely balanced, with the value of getting a judicial imprimatur having to be weighed against the resource implications and the possible corrosive effect on respect for the senior judiciary which such inquiries might cumulatively entail. (The Americans are resolutely opposed to such extra-curricular judicial activity, though as we know their Supreme Court has come up with an ingenious new way of forfeiting public respect.)
Judges, it seems to me, should be particularly reluctant to accept any quasi-judicial function of an ongoing, statutory nature, particularly if it comes with the title of ‘commissioner’ (as with the Parnell Commission) or with the title of head of this or that ‘tribunal’ established by some new framework of law. This is especially so if such posts are not one-off calls to public duty but new positions requiring to be permanently filled on terms that are often effectively set by the executive for its own convenience.
That this is not a wholly theoretical question, or one of historical interest only, can be seen from the very recent enactment of the Regulation of Investigatory Powers Act 2000. This controversial Act provides for a whole series of powers aimed broadly at covert surveillance. The measure is awash with Orwellian functionaries – the Chief Surveillance Commissioner, the Assistant Surveillance Commissioners, the Intelligence Services Commissioner, the tribunal – all of whom share as their ostensible purpose the aim of protecting the public from abuse. But exactly how robust such oversight is, how clear the lines of authority, how real the level of review are matters of no little concern.
What makes this an issue of constitutional significance for the judges is the fact that the Act anticipates – indeed depends on – judges fulfilling these various roles. It will not be through the performance of the judicial function as we know it that their power will be exercised, however, but through procedures standing outside the legal process, with sharply truncated rules of engagement and with terms of appointment under the Act which are very different from those normally extended to judges on elevation to high office.
I can immediately see the advantage from the executive’s point of view of securing the benefits of the judge’s prestige, but where is the value in it from the judicial perspective? At the very least, before agreeing to take up such a post, the judge in question would be wise to insist that his or her status should not be deployed without the inconvenience to the government of the fair and open procedures which are indelibly associated with his office. To put it in a rather less refined way, the integrity of the English common law courts has historically been defined by their opposition to special courts such as those of the Star Chamber and the High Commission of the Stuart era. This is one reason the judges are held in high regard today.
But our contemporary judiciary are surely as ill-suited as their forbears were to participating in pseudo-courts set up with truncated judicial processes and designed in the main not to control but rather to legitimise the exercise of executive power. If this dirty work has to be done, there is no reason why the judges should regard themselves as duty bound to do it.
Now we read in the newspapers that not even the Regulation of Investigatory Powers Act has satisfied the appetite of the security services and the police – who are reported to be demanding access as of right to every phone call, e-mail and Internet connection made in Britain. Inevitably we are told that this is to assist in the so-called ‘war against paedophiles, drug traffickers and organised criminal gangs’. But reciting the mantra of evil ones is not enough to justify the powers desired. No doubt the planners of this legislation are entirely confident that whatever limited niche they allot the judiciary, the judges will be more than happy to squeeze dutifully into it. They should be made to think again.
I like to think that if he were suddenly transposed to the present, Lord Russell of Killowen, with his experience of the Parnell Commission and his 19th-century Irish background, would take a very clear and negative view of such quasi-judicial frolics into the secret state. During his judicial career he did in fact have something important to say about another kind of matter for which he thought the judges ill-suited. His views are to be found set out in the well-known decision of Kruse v. Johnson (1898), and it has a strong contemporary ring. The case concerned the validity of bylaws promulgated by a local council. For years Victorian judges had become inured to scrutinising such laws very closely, and to striking them down if they were judged deserving of such a fate. But here what was at issue was a bylaw made by one of the ‘public representative bodies’ that had lately emerged as a consequence of the democratisation of local government.