Judiciary strikes back

Judicial review used to be just an esoteric part of constitutional law studied by law students and usually forgotten once they qualify and practise in more lucrative areas of the law.

But that no longer seems to be the case. Judicial dissent now seems to be the order of the day.

Judges are often accused of being out of touch and sometimes too outspoken and controversial on the bench. That image is still perpetuated in the press and does exist.

But the former Master of the Rolls, Lord Donaldson, made front page news with his article in The Guardian which outlined his concerns that the Home Secretary's continuing interference in judicial matters could lead to despotic government.

Indeed, the judicial dissent is growing wider with retired Law Lord Lord Ackner and Court of Appeal judge Lord Justice Rose both adding their voices to the criticisms of the Home Secretary's sentencing policy. Even former Lord Chancellor Lord Hailsham has thrown his hat into the ring.

Lord Donaldson concedes any government finds it an affront when it is told by judges that it is not acting lawfully. It is much easier to say, and sometimes believe, the judges are entering the political arena and disagreeing on policy grounds. And chair of the reform campaign organisation the Penal Affairs Consortium Paul Cavadino adds that he has not spoken to a single judge who is in favour of the plans. Rightly, he says that senior judges are right to oppose the proposals, not simply because they restrict judges' discretion, but because they will create serious injustice.

The judiciary is, arguably, one section which can provide informed criticism of law and order policy and practice; it is unusual to see them siding with bodies which would normally be considered of a different political hue.

Let us hope that this is not the last time this happens, or that they all agree on what puts freedoms and justice at risk.