Judges and Ministers

Anthony Lester

Are judges flirting with ‘judicial supremacism’ by questioning the sovereignty of Parliament? Or are ministers flouting the rule of law, by interfering with judicial independence? Is the Government minded to hobble the judges’ powers to review the way in which ministers and other public officers exercise their powers? Should British courts be given greater powers to remedy breaches of basic human rights and freedoms, or would that mean turning judges into unelected politicians? Are judges competent to decide questions of public policy? Do we need a code of modern constitutional principles to guide the legislative, executive and judicial branches of government? Or are we better advised, as Conor Gearty advised us (LRB, 16 November 1995), not to give more power to ‘unelected, unrepresentative and unaccountable judges’ by weaving the European Human Rights Convention into the fabric of British law, but instead to reform Parliament and the electoral system, and devolve power away from the already over-powerful central government?

Questions of this kind were rarely raised a generation ago; now they are commonplace. There are many reasons for what amounts to a radical change in public perceptions. They include the impact of European law, penetrating with ease Britain’s permeable unwritten constitution; widespread discontent with the way we are governed; Charter 88’s success in getting the question of constitutional reform onto Labour’s agenda; the spectacular development of judicial review of administrative decisions; and unprecedented attacks made on judges by ministers.

These attacks have been concerted, populist and unfair. They have been led by the Home Secretary, Michael Howard (a frequent and bad loser in the courts), and the Chairman of his Party, Brian Mawhinney, who has urged Tory hangers and floggers to write in and complain about lenient sentencing on the part of judges, and has put out as party propaganda a non-existent lecture, in which the Lord Chancellor would supposedly have called the judges to heel. Michael Heseltine has attacked the judges of the European Court of Human Rights, following its judgment in the Death on the Rock affair, hinting that the Government might take away the right of access to that Court (in the event, it was reluctantly renewed in January).

The Lord Chief Justice, along with the retired Law Lords, Ackner and Donaldson, have vigorously counter-attacked against what they see as the threat of executive interference with judicial independence, notably as a result of the proposed introduction of mandatory sentences for persistent serious offenders, which would deny the courts the power to impose a punishment to fit the particular circumstances of the crime. The Master of the Rolls, on the other hand, finds nothing novel or unconstitutional in the Home Secretary’s proposals.

The Lord Chancellor-in-waiting, Lord Irvine, has also entered the fray in a lecture (this one really was given) in which, surprisingly, he criticised the courts for ruling that it is for them rather than for ministers to decide whether administrative procedures are fair, and argued that they should intervene only if a minister’s choice of procedure is what judges stigmatise as ‘irrational’. According to Lord Irvine, it is ‘the constitutional imperative of judicial self-restraint which must inform judicial decision-making in public law’. He also criticised recent rulings that require tougher judicial scrutiny of decisions affecting human rights, while maintaining his support for making the European Human Rights Convention directly enforceable in British courts – a major constitutional change which would mean more rather than fewer applications for judicial review. And he warned liberally-minded judges, like Lord Woolf and Justices Laws and Sedley, against ‘judicial supremacism’ following articles in which they seemed to question the dogma of Parliamentary sovereignty.

Things were very different a generation ago. Then, the judges, influenced by the exigencies of wartime, by pervasive government control in the early postwar period, and by a desire not to be regarded as politically motivated, needed no reminding of Francis Bacon’s magisterial warning to the judiciary of the day: ‘let them be lions, but yet lions under the throne; being circumspect that they do not check or oppose any points of sovereignty.’ It was an age of deference by one group of Old Boys to another, when judicial members of the Establishment deferred to their fellow clubmen, the mandarins of Whitehall, in deciding where the public interest lay. In 1962, Lord Chief Justice Parker saw judicial review as founded on the principle that courts are the mere ‘handmaidens of public officials’, rather than designed to protect the citizen against the misuse of state power.

From Late Victorian times until the early Sixties, judicial restraint bordered on judicial abdication. The judges imprisoned themselves within a doctrine of legal precedent so inflexible that the Law Lords could not overrule their own previous judgments, however wrong-headed or outmoded they had come to seem. They also fettered their powers by adopting literal rules for the interpretation of Acts of Parliament, concentrating on the letter rather than the purpose of the law, and leaving it to Parliament to clear up the statutory mess. At mid-century, judicial review of administrative action was technical and perfunctory. Ministers and civil servants were able to use the broad discretionary powers which they had easily persuaded Parliament to give them, without the inconvenience of effective supervision by the courts to ensure that they used those powers in accordance with modern standards of good administration.

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