5. Kick judges out of politics

Beyond Brexit:

A programme for democratic reform

5. Kick judges out of politics

The judiciary has been empowered by Europe to ride roughshod over public opinion.

Jon Holbrook

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Topics Brexit Politics UK

In the final piece in our five-part programme for democratic reform, Jon Holbrook makes the case for kicking the judiciary out of politics. Read the introduction to the series here, Mick Hume’s piece on why we must leave the European Union here, Tim Black’s piece on why we must abolish the House of Lords here, Luke Gittos’s piece on why we must scrap Royal Prerogative powers here, and Brendan O’Neill on why we need proportional representation here.

Last summer there was a change of policy on convicted prisoners being disenfranchised in the UK. The change was modest and is likely to have enfranchised only about another 100 prisoners at any one time. But the change was significant because it happened at the behest of judges. Worse still, it happened in the face of trenchant opposition from the public and their political representatives in parliament. Philip Davies MP described the change as being as ‘popular as finding a rattlesnake in a lucky dip’. In a democracy, public policy ought to be sanctioned by the public, acting through their elected political representatives. But in Britain today, public policy, whether on prisoner enfranchisement or much else, is shaped and regulated not in the political sphere, but in the legal one. This is profoundly disturbing for British democracy.

The disenfranchisement of convicted prisoners was, before the judiciary got involved, decided in parliament and sanctioned by the public. The ban dates back to the Forfeiture Act 1870, and since then the legislature and executive have considered it on several occasions. Parliament enacted the current ban by passing the Representation of the People Act in 1983. Following its election in 1997, the Labour government considered the ban and, save for modest alterations, which it enacted in 2000, decided to keep it for convicted prisoners. When the law was debated in Parliament in 1999, the Home Office minister stated the principle which the public supported: ‘It should be part of a convicted prisoner’s punishment that he loses rights, and one of them is the right to vote.’

Judges, on the other hand, have in recent years been empowered by broad principles, such as those set out in the European Convention on Human Rights, to determine policy as they think fit. They have used these broad principles to determine policy that is anything but consistent with public sentiment. In fact, they have made defying public sentiment a virtue of their policymaking, as the case brought by John Hirst, the convict who challenged the prison voting ban, highlights. Hirst was sentenced to life imprisonment after hacking his landlady to death with an axe in 1979. The public would have had no difficulty supporting a policy that disenfranchised him for the duration of his imprisonment.

Yet the European Court of Human Rights viewed Hirst’s case differently. It concluded disapprovingly in 2005 that the automatic disenfranchisement of convicted prisoners was ‘based purely on what might offend public opinion’. In a passage dripping with contempt for public sentiment, the court set out its alternative, which, it said, was based on ‘tolerance and broadmindedness’. The court’s judgment in Hirst didn’t just abridge the right of politicians to determine public policy – it also actively encouraged judges to make policy that challenged public opinion. In Hirst the judges set themselves up as enlightened public-policy makers who had a duty to challenge what they saw as the intolerant and narrow-minded public policy desired by the public.

The Hirst judgment was so offensive to public opinion that most politicians found it unpalatable. For five years, the Labour government tried to ignore it. In 2010, Tory prime minister David Cameron, knowing that the public was with him, said it made him ‘physically ill’ merely to think of giving prisoners the vote. The following year, MPs voted overwhelmingly (234 votes to 22) not to change the policy, and after Cameron stated in 2012 that prisoners would not be getting the vote under his government, he received widespread political and popular support. Yet behind this bravado, the constitutional reality was that politicians would cave in. As the prisons minister put it in 2010, a change of policy on prisoner enfranchisement ‘isn’t a choice; it’s a legal obligation’. He was proved right.

Judicial meddling in public policy has not been confined to prisoner enfranchisement. In truth, it is not confined at all, for there is scarcely a policy issue on which a judicial ruling cannot now be obtained. In recent years public policy on abortion, adoption, asylum, criminal sentencing, deportation, extradition, homosexuality, immigration, marriage, military discipline, policing, pollution, prison discipline, social security, suicide, transgenderism and much else besides has been challenged by the law.

When it comes to public policy there are now few ‘no go’ areas for law. Almost any policy devised politically, whether by parliament or the executive, can be scrutinised by judges if there is someone with the determination to challenge it in a court of law. Public-policy making is now less about what is right and desirable and more about what the law will allow.

If domestic judges sitting in London – rather than European ones sitting in Strasbourg and Luxembourg – had adopted the high-handed notion that the public is intolerant and narrow-minded, it is doubtful that law’s empire could have expanded to conquer so many policy areas. But with a different language, the UK judiciary found a way to rule on public policy so as to avoid causing the sort of constitutional anxiety that European judges caused with their rulings on prisoner votes. As Sir Roger Toulson put it, before he became a Supreme Court judge, liberal societies can give legitimacy to a system of government either by the will of the people or by the rights of the people.

Now, government by the will of the people is generally called democracy. But Sir Roger drew a distinction between the will of the people and the rights of the people to provide a justification for judge-made public policy. He noted that an approach based on the rights of the people was desirable because ‘it is open to the judges to develop and refine what is necessary in a democratic society according to the views of the judiciary’ (emphasis added). With the passing of the Human Rights Act in 1998, Toulson was right to observe that a new era had begun, with the guiding force for public policy being not the will of the people but the rights of the people, as decided by the judiciary.

Public policies always involve a contest between individual rights and collective interests. The Human Rights Act requires judges to prioritise individual rights at the expense of collective interests. Twenty years of law-making overseen by this championing of individual rights has trained the British judiciary to view all cases the same way, whether or not they directly engage the Human Rights Act. In other words, UK judges have inculcated the approach that was first developed by European judges and which has now become their legal default and norm.

There are many arguments for democracy, but one of the strongest is that the people know best how to strike an appropriate balance between individual rights and collective interests. For on the one hand they want rights, but on the other they want the interests of their families, workplaces, communities and nation to be defended. Only a democracy that operates free of judicial constraint can strike the right balance. There is no place in a democracy for the law to intercede in the relationship between the public and their elected representatives. On public policy, politics must be the master and law its servant.

The problem can readily be seen in the judicial desire to enfranchise more prisoners. This is good for the rights of prisoners but bad for the community’s desire to punish criminals. More generally, judge-made law always tends to side with the prisoner, the criminal, the illegal immigrant, the person who wants to change his sex, or in broad terms the person who wants to challenge a collectively agreed norm. In short, judge-made law, motored by individual rights, has a ‘me, me, me’ quality. It has resulted in softer criminal justice, weaker prison discipline, compromised military discipline, porous borders and transgenderism, to name but a few of the ills that rankle with the public, whose views are given short shrift by laws that dismiss their opinions as intolerant and narrow-minded.

The irony of prisoner enfranchisement (an individual right) is that it disenfranchises the public (a collective interest). For the public’s desire to redress the balance by elevating collective interests has been ruled impossible by the law. Hence, over the past two years the Welsh and Scottish governments have been considering a greater degree of prisoner enfranchisement for local elections. Unsurprisingly, the Scottish Parliament’s Equalities and Human Rights Committee (a body that will clearly have more clout than the Scottish people) recommended in May 2018 that the ban on prisoner voting should end in its entirety. And in this month’s by-election in Shetland, the Scottish government is allowing all prisoners to vote on the grounds that the law requires it. (This is probably incorrect but it is good cover for weak-willed and woke politicians.) So much policymaking today takes place within a structure, often a straitjacket, determined by lawyers. Law has become master and politics its servant.

The divide between politics and law is central to democracy. Put simply, in a democracy public policy must be made by politicians who are accountable to the public. That policy needs to be forged by politicians engaging with and reflecting public sentiment. Whether rich or poor, grand or humble, citizens have life experiences and aspirations that should inform the public policy that shapes their lives. Each citizen’s opinion may exist in a rudimentary form, but democracy requires politicians to engage with the public to ascertain and shape these opinions before making policy. A democratic political process from the constituency surgery to a General Election is intended to facilitate a continuous dialogue between the public and their representatives. It doesn’t need legal oversight.

By giving law a central role in policymaking, such as by passing the Human Rights Act, politicians have undermined their own authority and disenfranchised the electorate. When policy is shaped in a court of law rather than a court of public opinion it is judges and not the people who take centre stage. Lawyers are empowered as politicians are disempowered. Contests over right and wrong yield to submissions over the lawful and unlawful. Bold and inspiring principles give way to impenetrable legal precedents. With each passing judgment, the sphere of law grows and the political sphere contracts. Individual rights are championed as collective interests wane. Slowly but surely democracy atrophies. For the health of British democracy, it is time to kick judges out of politics.

Jon Holbrook is a barrister. Follow him on Twitter: @JonHolb

His essay on ‘The Rise and Fall of the Rule of Law’ is published on 4 October in the book From Self to Selfie: A Critique of Contemporary Forms of Alienation, paperback £22.99.

Picture by: Getty.

To enquire about republishing spiked’s content, a right to reply or to request a correction, please contact the managing editor, Viv Regan.

Comments

Claire D

14th August 2019 at 6:52 am

Whilst I agree with the article on one level, re: democracy, I am not sure that blaming the judiciary themselves is fair. It seems to me it is the EU and foolish, ill thought out law making in the last 20 years or so that are essentially at fault.
The judges work for us and by and large they do a good job but I think they are actually being undermined by the law. It is the law that has gone astray.
When a judge insists that a female defendant call the person who violently assaulted her ‘ she ‘ even though that person is biologically male, the judge is insisting the female defendant should lie, in a court of law. Not only is that morally reprehensible, it is also ridiculous.
Judges are obliged in their position to keep to the rule of law, when the law becomes silly then we are in trouble, and we most definitely are in trouble.

Marvin Jones

16th August 2019 at 8:38 pm

The judiciary are a bit dim to realise that there is one positive way to define a gender, and it’s not in the head.

Linda Payne

13th August 2019 at 6:55 pm

This is another reason why Brexit needs to happen. Politicians will hide behind these new laws to justify inaction, if they were our laws they would be under more pressure to change them or do away with them altogether

terence patrick hewett

13th August 2019 at 2:47 pm

This problem is just a function of EU membership: as “goldgiver” and lawmaker the EU corrupts all the national institutions of all the member states and the UK is no different.

When we leave the EU the problem will be solved by the institutions themselves – as is beginning to happen already. My own professional institution is in the process of ridding itself of officers whose loyalty is to the EU, in preparation for the changed power configuration.

Jim Lawrie

13th August 2019 at 9:44 pm

Judicial review is not a product of the EU.

We need to leave the ECHR and blanket repeal all law stemming from it and all judge made law..

Linda Payne

13th August 2019 at 1:24 pm

It is quite disturbing how much the law has interfered in democracy; I remember how the human rights was incorporated into the military and soldiers were being taken to court to the extent that they could be charged and convicted with murder; whatever the rights and wrongs of the actions of the army this has probably resulted in a recruitment problem

Jim Lawrie

13th August 2019 at 6:21 pm

Individual, low ranking soldiers who actually pulled the trigger are charged. But responsibility does not pass up the chain of command., as shown by the Bloody Sunday Inquiry. £750k per week in today’s money and went on for 400 weeks.

The Judges are class warriors for their own.

Fraser Bailey

13th August 2019 at 1:19 pm

This 5-part programme is very good, although most of us reached all five conclusions some years ago. How about beefing it up a little and publishing it as an 18th century-style pamphlet, to be sold for a few quid? That way, it might reach a few more people.

Fraser Bailey

13th August 2019 at 1:16 pm

Very well explained. And 100% correct. The judges are the enemy of the people, as has been obvious for many years.

christopher barnard

13th August 2019 at 11:52 am

Judges are public employees, and subject to all the politically correct prejudices and contempt for public opinion which that status entails.

H McLean

13th August 2019 at 11:51 am

I would recommend withdrawing from the ECHR altogether, as well as the 1951 UN Convention on Refugees. These seem to only exist to be twisted and used in ways that do not resemble their original intention. It would take balls of steel by politicians to do so, however, and given the craven nature of current crop it doesn’t seem likely. It depends on how far the move towards populist nationalist politics continues – but given the tone-deaf nature of the establishment left it may only be a matter of time before we reach and surpass that point.

Hana Jinks

13th August 2019 at 5:41 pm

Absolutely right.

Jim Lawrie

13th August 2019 at 10:27 am

The belief that we need state intervention and oversight of the minutiae of our lives comes from The Left, who still nearly faint at the thought of the power wielded by Lenin, Trotsky and Stalin.

Amelia Cantor

13th August 2019 at 10:11 am

Judges are educated, intelligent and (I’m glad to say) embrace progressive values these days. OF COURSE THEY ARE HOSTILE TO BREXIT.

When children are playing with matches, responsible and caring adults intervene.

Brexit = matches
Brexit supporters = children
Judges, Caroline Lucas, et al = responsible adults

It is disgraceful that Spiked, who are supposedly educated, intelligent and embracive of progressive values, should be encouraging the children in their stupid and dangerous game.

Jim Lawrie

13th August 2019 at 5:24 pm

Godwin’s Second Law II – any utterance by a remainer will within 5 sentences call Brexiteers stupid –

Neil McCaughan

13th August 2019 at 7:10 pm

Our leading sub-literate contributor attempts a little dunderheaded provocation.

Marvin Jones

16th August 2019 at 8:45 pm

You suddenly emerge like a massive dose of flatulence from a fatberg.

ANDREW COLE

18th August 2019 at 8:50 am

Caroline Lucas? The very same Caroline Lucas that has spent her years talking about diversity, equality and prejudice? That fights against stereotypes?

The same Caroline Lucas that forgot that for a day and seriously put forward a list of 10 that were all white, all female, all remainers? Every aspect of diversity equality ignored? a prime example of prejudice and all based on a “stereotype” of “women being less tribal.”

Philip Humphrey

13th August 2019 at 7:46 am

It really is a case of “Quis custodiet ipsos custodes?” (Who guards the guardians). Politicians are answerable to us, the public. Judges are only answerable to other judges. It’s a bit like the police being answerable only to the police. The so-called Human Rights Act doesn’t help either, in that it is badly written and wide open to abuse by courts and judges. Perhaps it should be shredded and replaced with a British bill of rights guaranteeing freedom of speech, religion etc. and strictly limiting the powers of parliament (and judges) to meddle in our lives.

Jim Lawrie

13th August 2019 at 9:05 pm

A constitution along American lines would be a better guarantee, but with a stricture on judges extending any part of it beyond what was discussed and agreed on by the people and parliament. And a clear procedure for the rapid removal of judges who transgress.

Hana Jinks

13th August 2019 at 3:36 am

Outstanding. We’ve seen so many cases recently such as in the Christian social worker case and the Tommy Robinson case where the judiciary has been used by Deepstate to judge with partiality.

Hana Jinks

13th August 2019 at 6:24 am

If pommieland just swallowed it’s pride and adopted the American constitution, then it would save a lot of drama.

Hana Jinks

13th August 2019 at 6:25 am

But you already have eatern mayors…

Hana Jinks

13th August 2019 at 6:26 am

Eton and eastern..lol. Same diff.

Jim Lawrie

13th August 2019 at 12:59 am

“Almost any policy devised politically, whether by parliament or the executive, can be scrutinised by judges if there is someone with the determination to challenge it in a court of law.”

What that really means is the money – often legal aid . Why didn’t you mention this further injustice Mr Holbrook?

Julie Smith

13th August 2019 at 12:38 am

At the root of much, is a shirking of responsibility by our elected representatives, with little thought to the ‘unforeseen consequences’ of such shirking. It’s played well for our MPs delegating responsibility for the country to the EU and it seems to the Judiciary. Add to this process, an infestation by bleeding hearts in other corridors where power can be garnered and we’re altogether in a bad place. The fight, for it is a fight, to restore democracy is turning out a timely one – though there is much work to do (Leaving the EU is only the first job to do). I agree with the above whole heartedly.

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