Our top judges have become too powerful - we need to rein them in
Lord Kerr and his 11 Supreme Court colleagues are becoming the unacknowledged legislators of mankind and are undermining the rights of our politicians
The Lords of the Supreme Court, (back row, left to right) Lord Camwath, Lord Sumption, Lord Clarke, Lord Kerr, Lord Wilson and Lord Reed, with (front row, left to right) Lady Hare, Lord Hope, Lord Neuberger, Lord Walker and Lord Mance, October 1, 2012 Photo: PA
There is a vacancy just now for the chairmanship of the Judicial Appointments Commission. The position is always held, says the advertisement, by a layman. I’m thinking of applying. It matters who our top judges are, so I’d like to help. In this age of transparency, diversity and anti-elitism, it should be no disadvantage that I know nothing about the law.
Besides, because of the Human Rights Act by which the first Blair government made the European Convention of Human Rights part of our law, the judges’ job has changed. They are no longer solely learned people who uphold English precedent, process and legal principles. They are now empowered to impose theoretical ideas of universal rights upon the decisions of the elected government.
In a case last year, for example, Theresa May, the Home Secretary, decided that it would be against the public good for Britain to admit an Iranian woman with a terrorist conviction. A court case was brought against Mrs May. One Supreme Court judge, Lord Kerr of Tonaghmore, held that the court had the power not only to review whether the Home Secretary’s argument was “tenable” according to the rules, but whether it was “right”. He did not mean legally right: he meant just, well, right in the broadest possible sense. He thought that, because he was a top judge, he now had that power.
I have met Lord Kerr, as it happens, and found him a kindly and decent man. I have no reason to think he suffers from delusions of grandeur. He is simply pursuing the logic of the modern legal situation. Section 3 of the Human Rights Act places upon judges a duty to try to make British legislation compatible with the European Convention on Human Rights. This gives them, in practice, the licence to ignore what Parliament intended and impose what they want.
So I want to be part of this game. If Lord Kerr and his 11 Supreme Court colleagues are becoming the unacknowledged legislators of mankind, thereby undermining the rights of the politicians whom we, the people, have elected, then we, the people, need to get some power over these judges.
Until now, British citizens have had the inestimable benefit of not having to scrutinise who our senior judges are, because we have trusted them to stick to their vital but confined professional task. We have no more needed to know their political views than we have those of great oncologists or brain surgeons. But if they are to decree what is “right”, and to apply slippery concepts like “proportionality”, rather than sticking to strictly legal issues, we need to know their politics.
For example, we might want to know, before appointing them, what Lord Kerr and others think about immigration. Do they tend to put the rights of British citizens above or below those of people coming into this country for the first time? Are they for or against membership of the European Union? What about a sugar tax, fox-hunting, assisted dying? After all, if they can make up the law, their opinions on almost any controversial issue will matter.
Needless to say, I don’t have a chance of getting that appointments job. If you study its practice, you will find that the usual suspects appoint the usual suspects. The effective removal of the Lord Chancellor from the process (in the name of political impartiality), far from opening up the field, has made the judiciary an even tighter club.
It should not be too late to restore the respect in which judges have long been held in this country, by narrowing their scope.
But I do wonder how much longer this system can last. We are moving towards an American arrangement by which judges change the law in ways they want by wrenching very broad principles of rights to fit particular cases. Thus, Article 8 of the European Convention – the right to a private life – is invoked here in assisted dying cases to give people the right to death. In the United States (Roe v. Wade) 40 years ago, abortion was imposed across the whole country by asserting a right to privacy. The consequence, in America, is that all senior judicial appointments are intensely political. Everyone knows which judges are liberal, which conservative, and the parties fight incessantly to get the “right” ones on to the court. This system is an affront to impartial justice, but it is the inevitable, semi-democratic remedy if you turn judges into the masters of the state. That is the way things are going here.
So please could we stop? It should not be too late to restore the respect in which judges have long been held in this country, by narrowing their scope. In a brilliant lecture this week, the world’s leading legal philosopher, Professor John Finnis, reminded us that “Just as the Rule of Law is not the rule of judges … so too judicial power is not a power to remake the constitution.” He warned against the growing tendency of judges to allow the vital concept of “judicial independence” to slide into the notion that judges should feel superior to the will of Parliament.
Until now, British citizens have had the inestimable benefit of not having to scrutinise who our senior judges are, because we have trusted them to stick to their vital but confined professional task.
Judges, Prof Finnis pointed out, deal with individual cases, and lack the ability to look at the wider consequences of policy decisions in the way that Parliament does. They are unaccountable for their actions. They should not preen themselves that majorities are automatically wrong and they are a brilliant caste which is automatically right. “Judicial independence” should also mean, he suggested, the capacity of each judge to be independent of his or her fellows, rather than conforming to group-think.
Our Supreme Court (this is me talking here, not Prof Finnis) has only recently been so named. The name indicates that it is the highest court in the land. It is not supposed to mean that it is supreme over our system of parliamentary democracy.
On the continent, a system has long prevailed which sees the law as the assertion and implementation of universal, codified principles. And since the Second World War, partly out of memories of dictatorship, but also because of a lack of faith in representative government, this system has equipped “constitutional courts” to rule over elected parliaments. In the continental model – which stands behind the European Court of Human Rights, the European Court of Justice and indeed the entire structure of the European Union – the law does not arise from the habits of people living together in a self-governed free nation, but from a pseudo-religious concept of the Rights of Man.
Against this, England (Scotland is not the same) has something quite different. It is called the Common Law. Because we developed and spread it, it remains the basis for the law of more than two billion people across the globe today. It is called “Common” for the same reason that the House of Commons is so named. It is common to us, in virtue of being the English people. Our law and our Parliament belonged to us, but now they sort of half don’t. This will be a consideration, to put it very mildly, when Mr Cameron lets us vote on our constitutional future in 2017.