War of judicial independence
6 April 1996
Most people in the legal profession recognise that the UK is facing its gravest constitutional crisis to date - the lack of an independent judiciary. However, very few mention it. I will not be so polite.
The Lord Chancellor, Lord Mackay, is a government minister and his interests as a member of the Cabinet endanger and compromise his duties as the head of the judiciary. That Mackay must negotiate with the Treasury is one thing; for him to be obliged to defend insufficient provision of legal aid when he should be protesting it is quite another.
His judiciary is a quango (which may explain the need for wigs and gowns) and he and his judges have failed to comprehend, define and address their essential obligation.
Courts should be where laws and actions, especially those of powerful agencies, are fairly tested. Judges should not bow to persons, but to arguments.
This is not remotely the case. Ministers are given all but free rein on the grounds that they are democratically elected, while a blind eye is turned to violations of the rights of the voters themselves.
The rulings against Home Secretary Michael Howard are minor scrapes which serve to obscure the larger reality.
Hitler, who was also democratically elected, demonstrated that there is something more important, more respectable, than power achieved through the ballot box - a judiciary willing to protect the individual against the power of the state. But this country's judges, inheriting 900 years of rights, are not prone to intervening on behalf of the public. The "rule of law" is code for obedience to power.
If the Cabinet had merely been held to common law sanctions for wilful misconduct by government, we would not have had the reckless selling of water, gas, electricity and British Rail.
Our courts recognised, if belatedly, that ongoing consent is necessary between husband and wife. It is also necessary between the state and its citizens. To accept the people's right to say no by means of legal argument would not usurp Parliament as much as preserve respect for it.
Sadly, the historical misinterpretation of jurisprudence has trained lawyers to attempt only the narrowest technical arguments - why attempt what is bound to fail? If John Major were to imitate Caligula by appointing a horse as Secretary of State, who would trouble to argue Wednesbury unreasonableness?
There also seems to be a stultifying atmosphere in the government system which the Labour Party seems to look forward to maintaining.
In his speech to the Administrative Law Association a few months ago, Lord Irvine, the Shadow Lord Chancellor, warned against "judicial supremacy" as if ignorant of the difference between the imposition of a judge's idiosyncratic whims and his duty to apply universally accepted principles.
The status quo is usually defended by those who call themselves pragmatists.
But what is more pragmatic than preventing bad government? Ministers who can indulge themselves as Douglas Hurd did over the Pergau Dam are careless legislators and administrators.
I invite the legal community to energetically support the very necessary demand for an independent judiciary.
The Lord Chancellor should be removed from the Cabinet at the earliest opportunity. His responsibilities as head of the judiciary and the Home Secretary's powers regarding sentencing and appeals should be transferred to a separate judicial branch of government.
The appointment and elevation of judges must be an open and non-partisan process, perhaps through nomination by an all-party select committee and confirmation by two-thirds of the House of Commons. It also follows that the time limit for judicial review should be suspended.
The public know there is one law for the establishment and another for them. And by putting the spotlight on the structural and cultural origins of that double standard, we will hasten the day when any individual or group, regardless of status, can routinely expect a fair hearing and a fair outcome.
The Government has a stake here. Until its actions and statutes can be tested in an impartial court, it has little authority. No decent ministry and no intelligent judiciary can find such circumstances satisfactory. Neither ministers nor judges are in a tenable position. The onus is on them.
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