Readers will know that the defence of our democratic rights vies for my attention with efficient case management and the use of technology in litigation. The new Supreme Court combines both of these interests.
There is a story of a former Lord Chancellor, Lord Hailsham, who wished to speak to an MP called Neil whom he had espied in the public corridors of the House of Lords, and ran after him calling his name. Hailsham was, so the story goes, in full fig of robes and garters then worn by the Lord Chancellor. What would you do, as a tourist in that august and severe building, if an authoritative-looking man so dressed ran by shouting “Neil” in a commanding voice? They did as they were told.
Hailsham left office in 1974, so the story is not that old. Much has changed since then in the House of Lords – the hereditary peers have nearly all been expelled; the Lord Chancellor (a member of the government) surrendered the right to sit as a judge; he is now not a Lord at all but a dull little man in a suit from the House of Commons, following a botched attempt to abolish the post in 2003; and now the separation of executive and judicial powers is complete with the removal of the national court of last resort to a Supreme Court on the other side of Parliament Square.
Two articles from The Times show how far we have come with this move, which has more important implications than merely the redirection of mail across the road. One is by Richard Susskind. Called How Bloody Sunday helped to future-proof the Supreme Court’s IT, its main focus is on the way that technology was built into the plans for the new court, both as part of the infrastructure and in its procedures. Investment in court technology was promised by Labour when it took power in 1997, so it is good to see that at least one court will have been kitted out before Labour’s ejection on Thursday 3 June 2010.
The second article deals with the constitutional implications of the Supreme Court. It is by former Director of Public Prosecutions Ken Macdonald QC and is called Day one: judges put power to the test. The last eleven years have seen the erosion of ancient freedoms at the hands of over-wheening government on a scale unimaginable to our ancestors. Part of that campaign (and it has been deliberate) has been the government’s claimed right to make law by executive order, by-passing Parliament, and to circumscribe the courts’ powers. It may seem paradoxical that the same government introduced the Human Rights Act and created the Supreme Court, but that is because it under-estimated the extent to which both could be used against it, and under-estimated too the resolution which judges would show in the face of bullying by successive Home Secretaries.
Ken Macdonald’s article ends thus:
Yet ministers should reflect that there are multiple costs in disillusionment and heavy payment will be due in time. The rules of governing and scrutiny matter.
If they don’t seem to include the public, or reflect our common sense of what is right, they become incompetent and cease to command loyalty. So let our judges protect the rule of law, if no one else will.
“The rules matter”. That is true at many levels, from weighty points of constitutional propriety and democratic liberties down to everyday conduct. The last few days have seen the Attorney General gaily dismissing her breach of the immigration laws as no more serious than non-payment of the £8 congestion charge, and the Deputy Leader of the Labour Party apparently playing dodgems in the traffic whilst talking illegally on her mobile phone and then driving off without exchanging names and addresses as the law requires. Rules, you see, are for other people, not ministers. That matters, because these people are members of a government which has heaped rules on us and given immense powers to ever-growing armies of low-rent civil servants to enforce them without discretion, appeal or redress. We need independent judges now more than at any time since James II’s enforced departure in 1688 and the Act of Settlement of 1701 which protected judges from arbitrary dismissal.
A Supreme Court which simultaneously protects and fosters judicial independence and introduces technology into the courts is something to applaud.