What Robert Jenrick gets wrong about activist judges

Robert Jenrick is talking tough on the judiciary. The UK shadow justice secretary’s latest proposal is to sack immigration judges who display pro-asylum bias in their decision-making.

Speaking at the Tory conference yesterday, Jenrick brandished a judge’s wig and reproached ‘dozens’ of judges who he claims advised or acted pro-bono for pro-migrant groups before joining the bench. These judges have ‘spent their whole careers fighting to keep illegal migrants in this country’, he proclaimed. Many have worked with groups such as Bail for Immigration Detainees (BID), which campaigned against the Tories’ Rwanda scheme, and Asylum Support Appeals Project (ASAP), which backs challenges against Home Office refusals of support. Beyond dismissing the offending judges, Jenrick also proposes abolishing the Judicial Appointments Committee and passing this responsibility back to the lord chancellor.

Jenrick is not wrong to raise questions about judicial decision-making. Many recent asylum cases seem to defy all logic or common sense. You would be hard pushed to find any normal person who agrees with, say, a paedophile being permitted to stay in the UK because it would ‘unduly harm’ his children if he left, or who thinks that a convicted criminal should avoid deportation because his son needs access to a particular kind of chicken nugget.

The public and politicians have every right to be critical of such decisions. It is also right that the appointment of judges has some democratic authority. Arguably, Jenrick’s proposal of passing responsibility for appointments back to the lord chancellor, an elected official, would achieve this.

But Jenrick’s intervention carries big risks. Judicial independence is a hugely important element of our constitution, which says that judges must be free of influence from the executive (of which the government is part) to interpret the law made by parliament. Jenrick suggests that there is a ‘hidden network’ of activist judges who are undermining judicial independence. But his message also seems to be that any judge whose decisions contravene the government’s wishes will face consequences for their career. This isn’t how our constitution should work.

That’s not to say we should ignore judicial bias where it occurs. Justice should not just be done, but seen to be done, too. Jenrick rightly complains about judges tweeting favourably about decisions they agree with politically, and complaining about those they disagree with. This is wrong, but it could be easily dealt with through specific reprimands against individuals. Judges will inevitably have political leanings. It’s probably best that they are transparent about these so that the public can assess for themselves whether their politics influenced a particular decision.

The problem is that Jenrick’s evidence of ‘pro-asylum bias’ in specific judges is spurious. It is based on combing through judicial biographies to find the organisations that judges worked with prior to joining the judiciary. One example he cites is judges who worked for BID, an organisation that provides free assistance to immigrants in asylum centres. But acting for these organisations pro-bono is not necessarily evidence that the judge is in favour of unrestricted immigration. Conditions in detention centres are such that people are often denied representation, so lawyers offer to help for free. This could just as easily be demonstrative of support for due process rather than for open borders or illegal migration.

Judges swear an oath when taking office to apply the law without fear or favour. Unless we have good evidence of the contrary, we should trust that they are honouring this pledge. Where there is evidence of real bias, the appeals system should correct it and the judge should be disciplined.

The biggest problem with Jenrick’s proposals is that they minimise the role that the law itself plays in these decisions. Judges in immigration cases can only make decisions on the law they are presented with. It was previous governments who handed judges more control over immigration decisions – primarily via domestic legislation like the Human Rights Act, though treaties like the Refugee Convention also limit politicians’ power. Unless these laws or treaties are amended, there will inevitably be a handful of ridiculous-looking outcomes. Jenrick acknowledges this by stressing that leaving the European Convention on Human Rights is an ‘essential first step’. But the steps after that should continue to focus on the law – rather than on individual judges – if we want to see serious change.

It could well be that certain judges in our judiciary are biased. Undoubtedly, those individuals should be disciplined. But the idea that ‘rooting out the bad apples’ will fix the problem only serves to underplay the terrible mire our asylum system is currently in.

If Jenrick and the Conservatives truly understood the complexity and magnitude of the problems with our asylum system, then sacking a few activist judges would be pretty low down on the priorities list.

Luke Gittos is a spiked columnist and author. His most recent book is Human Rights – Illusory Freedom: Why We Should Repeal the Human Rights Act, which is published by Zero Books. Order it here.