If the enemy of my enemy is my friend, it follows that the enemy of Michael Howard is my hero. So awful was Howard’s long reign at the Home Office that many liberals sought democratic relief from the most blatantly undemocratic section of the establishment: the judiciary. It was the strange sound of Law Lords denouncing Howard’s preposterous insistence that ‘prison works’ and the widespread jubilation at his many snubbings in the courts that led to liberal hosannas for the judges. And the judges in turn were happy to see themselves as Supreme Keepers of the Public Liberties. On the right, Mr Justice Laws called for a ‘higher-order law’ under which judges could overrule elected governments in the interests of the people’s ‘fundamental freedoms’. On the left, Mr Justice Sedley wrote: ‘Modern public law has carried forward a culture of judicial assertiveness to compensate for, and in places repair, dysfunctions in the democratic process.’ In the centre, Lord Woolf: ‘I myself would consider there were advantages in making it clear that ultimately there are even limits on the supremacy of Parliament which it is the courts’ inalienable responsibility to identify and uphold.’ Common to all three was the notion that the judges are the obvious people to intervene wherever ‘dysfunctions in the democratic process’ emerge.
Joshua Rozenberg tells the story of the ‘trial of strength’ – ‘petulant squabble’ might have been more accurate – between the judges and Tory ministers in the final years of the Major Administration. At huge length he regurgitates the argument that attended Howard’s plans to extend sentences for serious crimes. This argument was a sham: the statute law is full of minimum and maximum sentences set down by government. Howard sought ruthlessly to increase sentences, and the senior judges publicly attacked him. Their contention that the new rules were draconian and cruel was unanswerable. Their conclusion – that sentencing is best left to democratic and compassionate judges – was greeted with hollow laughter throughout the prisons. Last January at Leicester Crown Court I sat dumbfounded as Judge Hammond sent Fred Whelan to prison for a year. Whelan was 65 and had never been in trouble with the police. His ‘crime’ had been to take a lump of cannabis into Gartree Prison to afford some comfort to his desperately ill stepson, Michael Hickey, who was serving his 18th year in prison for a murder which we now know he did not commit. In vain witnesses (I was one) tried to explain that Whelan was not a man even to consider taking drugs himself: that his so-called crime was a typical act of generosity. In court that day, as in the courts every day, the judge showed no compassion and no common sense, but coolly proceeded, at enormous public expense, to cause further distress to a family already distressed beyond imagining by judicial recklessness.
The reason that the judges campaigned against Howard’s sentencing proposals had nothing to do with humanity or common sense, as they pretended. They saw the Government, which had only recently dared to suggest a relaxation of the barristers’ closed shop, as a poacher on their patch who had to be shooed away. Rozenberg disagrees. ‘The senior judges,’ he asserts, ‘are a modern and liberal-minded group of people’ who ‘seek to act in the broad public interest’. As proof he chronicles the staggering growth in applications for ‘judicial review’ of government decisions, up from 491 in 1980 to 3293 in the first ten months of 1996. It is undoubtedly true that a great many injustices have been righted by judicial review – hundreds of paupers wrongfully imprisoned for not paying fines have been set free, for instance. More important, the authorities have been forced to disclose information which they wanted to keep secret – the Hickey case was among many bust open by this process. But these blessings flowed as much from the fact that injustices could be aired in public, and from all the resulting campaigns, articles and petitions, as from any judicial tendency to justice or mercy. Rozenberg praises the achievements under judicial review of his ‘modern and liberal-minded’ people, while apparently forgetting the endless line of injustices which have disfigured the courts of justice over the last two decades.
Lord Bridge, we are reminded here, was forthright in his opposition to the gagging order on Spycatcher. Excellent. But it was Mr Justice Bridge who presided at the 1975 trial of the Birmingham Six, and declared in a judgment groaning with bias that the evidence against the defendants was the strongest he had ever heard. Lord Donaldson is quoted here fervently defending the judges’ right to fix sentences. But it was Mr Justice Donaldson who presided at the trial of the Guildford Four. The only politician respected by the former Lord Chief Justice Lord Lane, we are told, was Douglas Hurd. But was not Hurd openly attacked by the same Lord Lane in his monstrous judgment at the first appeal of the Birmingham Six, which he dismissed? In the cosy, cautious style of a BBC correspondent (one of Rozenberg’s most radical proposals is that the judges should appoint a public relations officer; and he twice quotes approvingly from an Observer columnist called Melanie Phillips, without revealing that she is his wife) we are introduced to two other urbane and reforming senior judges, the late Lord Chief Justice Taylor and Lord Goff. But it was Messrs Justice Taylor and Goff who, with Lane, refused even a proper appeal to the Bridgewater Four when, with overwhelming new evidence of their innocence, they first went to the Court of Appeal in 1981.
Rozenberg quotes ‘a brave and decent judgment’ from Mr Justice Collins: ‘I find it impossible to believe that Parliament intended that an asylum seeker who was lawfully here, and who could not lawfully be removed from the country, should be left destitute, starving and at risk of grave illness and even death because he could find no one to provide him with the bare necessities of life.’ This, as Rozenberg points out, was naive in the extreme. The precise and only purpose of the new government rules withholding benefit from asylum seekers was that they should be starved out of the country and back to the repressive regime whence they came. Hoorah for the brave and decent Mr Justice Collins. Yet Andrew Collins QC was sharply criticised by the Scott Report for not disclosing documents vital to the defence of six men charged with illegally exporting fuses to Iraq. Another judge who simply could not believe that Parliament, in the shape of Peter Lilley, could contemplate starving asylum seekers to death and thus violating their ‘basic human rights’ was Lord Justice Simon Brown. But it was Simon Brown QC who appeared in the divisional court for the Government in 1982 in an initially successful attempt to deprive Mr Ron Smith of Leeds of his basic right to an inquest into the death of his daughter who had been found dead in strange circumstances in Saudi Arabia. The law at the time was clear – everyone had a right to an inquest into any dead body they brought to Britain. But Simon Brown argued that Parliament could not possibly have meant what it said, and successfully asked the judges to contradict it. For that matter, how many fundamental freedoms did the latter-day champion of ‘fundamental freedoms’ Mr Justice Laws curtail in his long stint as John Laws QC, the Thatcher Government’s chief court lawyer?
Joshua Rozenberg’s not entirely original view is that elected politicians should make the laws and judges should administer them. He advises the two sides to stop attacking each other: politicians should be respectful of judges and judges respectful of politicians. He admits that this separation of powers is very difficult to define or to act on, and he seems to think (though he hates to commit himself) that we would all be better off with a Bill of Rights which would override all other legislation. One surrogate Bill of Rights which he commends is the European Convention of Human Rights, which New Labour is committed to incorporating into British law. He lists the growing number of judges who are so much in favour of a Bill of Rights that they are threatening to bring one in through the back door by means of the common law if the Government doesn’t do so by statute. There is nothing surprising about mounting judicial enthusiasm for a whole new area of law which will give lawyers yet more lucrative work and at the same time empower judges to overrule an elected parliament. With a Bill of Rights to pick over, the judges would be much more active and much more powerful. Another advantage of a Bill of Rights is that it doesn’t need much democracy to sustain it. Rozenberg earnestly discusses as ‘limited judicial entrenchment’ the Bill of Rights Ordinance in Hong Kong, which, he says, ‘preserves parliamentary sovereignty’, while overlooking one rather important right denied by this sovereign parliament – the right to vote for it.
So, after a rather pointless chapter on Spycatcher and the Scott Inquiry, the book concludes – without a conclusion. We are left gazing at the same old scales with an elected legislature on one side and an ‘independent judiciary’ (independent, that is, of the electorate) on the other, and listening to Rozenberg’s lecture on the supreme importance of keeping the balance between them. ‘It is one of the strengths of the common law,’ Lord Woolf wrote in 1995, in a passage admiringly quoted here, ‘that it enables the courts to vary the extent of their intervention to reflect current needs, and by this means it helps to maintain the delicate balance of a democratic society.’
What a relief that Rozenberg’s book was followed so quickly by the fifth edition of John Griffith’s classic, The Politics of the Judiciary, and to see Woolf’s pompous dictum written off for what it is – ‘a pleasing conceit’. Griffith explains that the notion of a balance of power between legislature and judicature ‘derives from ships of state on even keels’. There is no ‘objective hidden hand which holds the constitution in perpetual equilibrium’. On the contrary,
political power, the power of government, is exercised by a ... small number of people, consisting of ministers, senior civil servants, a few heads of industry, banking and commerce and some influential advisers ... Until recently, the most senior judges have been part of this oligarchy ... They have today lost that high status ... and part of the reason for their present robustness is to be found in their attempt to regain what status they have lost.
Griffith had started by asking who the judges are and where they come from. Even if the judiciary has recently lost a bit of ground, his conclusion holds good:
Judges are the product of a class and have the characteristics of that class. Typically coming from middle-class professional families, independent schools, Oxford and Cambridge, they spend twenty to twenty-five years in successful practice at the Bar, mostly in London, earning very considerable incomes by the time they reach their forties. This is not the stuff of which reformers are made, let alone radicals.
In other words, the judges are not a brake on the excesses of the controlling oligarchy: they are part of it.
We need to keep that oligarchy accountable and in check, and our Parliamentary institutions are woefully inadequate for the task. Griffith (not Rozenberg) has some suggestions as to how we might do it.
Far more than on the judiciary, our freedoms depend on the press, politicians and others to publicise the breach of these freedoms and on the continuing vulnerability of minïsters, civil servants, the police, other public officials and private interests to accusations that these freedoms are being infringed. In other words, we depend far more on the vigilance of those members of society who ... make it their business to seek to hold public authorities within their proper limits.