Judging the judges
As judges get more power, they should expect more criticism.
In a speech to the annual conference of the Society of Editors, Lord Justice Judge, Deputy Chief Justice of England and Wales, warned about the perils of inaccurate reporting for the judiciary (1). He is not the only senior legal figure to express such views recently. The leading human rights barrister Anthony Lester QC has also written about press attacks (2). And the Lord Chief Justice of England and Wales, Lord Woolf, has expressed concern about the vulnerability of judges to unjust criticism (3).
Behind these protests is the fear that such attacks might allow a future government to undermine judges’ independence.
Yet subtle changes in the way that Britain is governed mean that judges can expect more, rather than less, criticism in the future. As the power of judges expands into areas that ought properly to be left to the democratic decision-making process, judges can expect the abuse and scrutiny received by elected politicians.
Of course, media attacks on judges are nothing new. Along with England football managers and members of the Royal Family, the out-of-touch judge has long been an easy target for the tabloids. And sometimes such complaints are justified. Judges do come out with ill-advised remarks. They impose sentences upon criminals, which people find objectionable as either too harsh or too lenient. Anyone who has ever worked in the court system knows that the quality of judges varies widely.
Lord Justice Judge does have a point, though, as much of the criticism directed at judges is misguided. Judges are often condemned for decisions forced upon them by the way in which legislation is framed. And it is unfair to blame judges for the enormous increase in applications for judicial review; these applications often result in judgements unfavourable to the government, but the courts have no option but to deal with them.
One of the examples cited by Lord Justice Judge was Dame Elizabeth Butler-Sloss, who had given a ruling involving the Proceeds of Crime Act 2002 and the extent to which lawyers had to disclose potentially unlawful financial transactions involving their clients (4). The ruling was criticised, even though the problem was the drafting of the legislation.
However, the increasing criticism of judges is not due to a lack of legal understanding. Instead, it is the result of the handing over of power from democratic politicians to an unelected judiciary. Since the 1970s judges have steadily expanded their power. Judicial review has grown in scope so that almost all areas of government activity are now subject to intervention by the courts. This development has run in parallel with the public’s growing disillusionment with and disengagement from the formal political process.
If society is now less deferential and trusting towards those in authority then judges have to some extent benefited from this. As politicians have become less trusted, people have put their faith in judges to challenge government and hold it to account.
Behind all this has been an odd political sea-change. It is not so long ago that it was the left that bitterly complained that unelected judges had too much power. Such views slowly altered in the 1980s when the law came to be seen as one way of limiting the power of the Conservative government. When Labour returned to office it was committed to increasing the authority of the courts. Political dissatisfaction with the judiciary has now switched from the left to the right.
The fundamental change came with the introduction of the Human Rights Act in 1998, which transferred even more power to judges. For different reasons politicians and judges alike have been coy about the impact of this piece of legislation. The government was unwilling to make too much of what could be seen as an undemocratic measure, and it played down the impact of the Act.
The pretence is that while the Act has a positive and benign effect, nothing has really changed. In truth, developments in domestic human rights policy have become litigation driven. Judges have become involved in policy decisions that might previously have been made within the democratic system.
Pressure groups can be more honest about the importance of the Human Rights Act. Non-governmental organisations (NGOs) have been quick to see the judicial process as a valid way of achieving social and economic change, without engaging in the normal democratic process. In this, they are looking to follow the example of the USA, where the power of the judiciary is such that it has long since moved into areas of policymaking.
Although judges didn’t ask for these extra powers they must now make decisions in all kinds of controversial policy areas. Nor can judges fall back on precedent as they used to, as human rights law is particularly fluid. The European Convention on Human Rights is often referred to as a ‘living instrument’ that has to be interpreted in the light of prevailing social conditions – and it also extends into unforeseen areas. Article 8 of the Convention, the right to respect for private and family life, can be engaged in an almost infinite number of situations.
Increased criticism is only one result of this shift in the position of judges. Michael Beloff QC has pointed out that when the power of judges is enlarged so that they become involved in political decisions, politicians tend to become more interested in how judges are selected (5). Inevitably, changes have now been proposed in this area.
This growth in the influence of the judiciary means that the media, the public and politicians will all have more to say about the activities and decisions of judges. Lord Justice Judge is right when he says that unjustified criticism harms the judicial process. But this criticism and interference is the inevitable consequence of giving more power to judges. Both democracy and judicial independence will suffer as a result.
Raymond Perry is a solicitor (email email@example.com).
Judging liability, by Raymond Perry
Law begets law, by Raymond Perry
(1) Heroes and villains (.doc 51.0KB), Igor Judge, 13 October 2003
(2) Don’t blame the judges, Anthony Lester, Guardian, 25 February 2003
(3) Judiciary, Legislature and Executive, Lords Hansard text, 21 May 2003
(4) ‘Divorce lawyers must turn informer over tax dodging’, Frances Gibb, The Times, 9 October 2003
(5) Foreword (.pdf 119 KB), Michael Beloff, to The Rape of the Contitiution, Imprint Academic, 2000
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