Judges defend our long-term liberties from short-term politicians

Can you get Henry VIII, necrophilia, the Human Rights Act, Phil Woolas, quangos, rubbish bins, the nuances of the English language, New Labour statism and health & safety into one serious article about the role of the judiciary vis-à-vis the executive? I’ll give it a try.

The relationship between parliament and the judiciary reached its nadir under the recently departed Labour government. The battlegrounds were the Human Rights Act, the so-called “Henry VIII” powers with which Labour sought to by-pass parliament, and the inverse relationship between the quantity and the quality of the mass of legislation which poured out of Westminster. Matters do not seem much improved under the coalition. The Lord Chief Justice, Lord Judge, has been making his views known.

The Human Rights Act

To some, the Human Rights Act is one of the signs that Britain is going to the dogs, whilst others see it as a fundamental assertion of the rights of ordinary people against the state. Most of us, politicians included, would like to pick and choose, depending on our own views of the individual outcomes of cases brought under it. The same applies to other circumstances where our liberties are at stake, where the authorities increasingly see our rights as a barrier to their powers rather than something which they were elected or appointed to protect, and we expect simultaneously to be guarded and left alone. To a judge, it is a more sober matter of applying the law to the facts.

The incoming Labour government in 1997 was quick to introduce the Human Rights Act, which passed into law in 1998. Almost immediately, however, it found that the Act stood in the way of things it wanted to do. Tony Blair, not a man to let little things like democracy and the rule of law stand in his way, was openly irritated by judicial intervention, as was his first Home Secretary, Jack Straw, (who introduced the Act). Straw’s successors, especially David Blunkett (a man whose undoubted political cunning seemed unqualified by common sense or self-awareness) seemed to see the judges as the enemy, whilst Jacqui Smith (for whom “home” and “secretary” somehow seemed just the right words) behaved as if the entire population was the enemy, and certainly made us feel it. Considerable political capital was expended in the government’s fight for 42 days’ detention of possible terrorists, which trampled on much more ancient rights. The government thought it almost treasonable that judges “used” the Human Rights Act to thwart the executive’s stance on possible terrorists – I put “used” in quotation marks to emphasise the gulf between judges applying the law as they found it and the government’s perception that it was judicial spite which turned their own creation against them.

The conflict continues to bubble along in matters both specific and general. A specific example is the recent decision by an Immigration Tribunal to allow an asylum seeker to remain in Britain despite an unlicensed driving career which included mowing down and killing a child. Prime Minister David Cameron was outraged at the tribunal’s conclusion that the driver’s subsequent marriage and fatherhood meant that his human right to family life trumped the ordinary man’s view as to what was right. Outrage, however, is no substitute for a cool appraisal of the law – see this post on the Human Rights Blog for an analysis and for comments both ways which show why Joe Public (that’s you and me – and, in this context, the government of the day) do not get to convert our instinctive judgments into action.

Parliament and “Unelected Judges”

Another point arose with the MPs who claimed that parliamentary privilege barred the courts from hearing the cases arising from their expenses prosecutions, and with those who whined about “unelected judges” deciding the parliamentary fate of the ghastly Phil Woolas. Woolas lied about his opponent at the general election, and many in Parliament and the press thought that it no business of the courts to intervene in these things. Many (me, for example) would happily put Woolas’s head up on a pole on London Bridge in the old-fashioned way, with a parliamentary expenses fraudster on each side for company. It is just as well that we have judges to take the middle course (which has put Woolas out of Parliament and sent one expenses claimant – so far – to prison) of simply following the law.

The Henry VIII powers

A wider issue comes up with the Public Bodies Bill presently going through the House of Lords. Attention has focused on the so-called “Henry VIII powers” which would give ministers the right to close down public bodies with very little parliamentary oversight. Many of us sympathise with the government’s wish to cut the cost and interference of the enormous number of quangos and other unaccountable bodies which have appeared from nowhere in the last decade, and may think that anything which speeds up the process is a good thing. Is it though? Not all of these bodies are useless in function or in personnel. Most of them were set up by act of parliament and, whatever our individual enthusiasm for taking an axe to public expenditure, it seems wrong in principle that the government should have power, almost by dictat, to demolish something which parliament debated before creating.

Labour tried something similar in the battles over the bill which became the Legislative and Regulatory Reform Act 2006. The context then was the sense that the removal of parliament’s right to scrutinise legislation was of a piece with other undemocratic steps which gave the government of the day too much power. It was one of the many reasons why voters turned on Labour, and we are betrayed if a Conservative-led government, albeit one with all those Lib Dems tied round its neck, does not reverse that sinister trend (I should explain for the benefit of any foreigners who have wandered in that there is little either liberal or democratic about the party called the “Liberal Democrats”; they may dress their controlling instincts in more paternalistic clothes than Labour, but they nevertheless very much want to tell us what to do and how to behave. It is like being herded by sheep).

Judges have a difficult line to walk here. They must not be party political or partisan, and legislation is the prerogative of Parliament. On the other hand, the judiciary is part of the balancing mechanism which stands up for the rule of law against the government of the day.

All this is by way of introduction to an excellent article in the Guardian by Joshua Rozenberg. Called Lord Judge’s interventions in politics have not overstepped the line it, and other articles linked from it, report on the strong disapproval of the Lord Chief Justice, Lord Judge, of the “Henry VIII” clauses in the bill.

The reference is to the Statute of Proclamations of 1539 which I was sufficiently curious to track down – you will find it here at letter (K). Here is the opening premise:

“the advancement of [the king’s] commonwealth and good quiet of his people” had been “wilfully contemned and broken” [by] “divers and many froward, wilful, and obstinate persons … not considering what a king by his royal power may do, and for lack of a direct statute and law to coerce offenders to obey the said proclamations; considering also that sudden causes and occasions fortune many times which do require speedy remedies, and that by abiding for a parliament in the meantime might happen great prejudice to ensue to the realm”

Well, how familiar does that sound? Many people do wrong, it says, and there is not always a law precisely framed to stop them. Sudden problems may arise, and it may not be possible to wait for parliament to pass appropriate laws. That sounds just like the wretched Jacqui Smith seeking more executive power, doesn’t it? The Statute goes on:

“Be it therefore enacted … that always the king for the time being, with the advice of his honourable council… may set forth at all times by authority of this act his proclamations …. and that those same shall be obeyed, observed, and kept as though they were made by act of parliament for the time in them limited”.

It is this right to powers “as though they were made by act of parliament” which so concerns us. As it is, acts of parliament already include sections which the government can choose – or not – to invoke by statutory instrument, with blank spaces to add details not put to parliament. Further down the pond, in the sludge where local authorities, police forces and a host of unaccountable authorities lurk, broad powers have been given to unsupervised nobodies which far outstrip their abilities: we find police constables harassing tourists under public order legislation, dumb animals in local councils invoking anti-terrorist powers to spy on householders who put their rubbish bins out on the wrong day, and little runts with clipboards instead of brains using health and safety powers to interfere with lives and businesses. In my city, Oxford, town and country planning decisions are delegated down to lowly council officials – so we have planning officers, of all people, empowered to decide what the city looks like.

The Statute of Proclamations was repealed in 1547. Lord Judge’s objection, and that of many in Parliament and outside it, is that the Bill now going through Parliament would give similar powers to the executive which neither parliament nor the judiciary could intervene to prevent or reverse. We may not think much of a parliament which, until recently, included the likes of Phil Woolas, but better that than leaving the executive to do what it likes.

Quality of legislation

An article in the Law Society Gazette of 16 December covers more than its rather prosaic title implies. The heading Judiciary has failed to lure City lawyers, Lord Chief Justice admits would have many of us quickly turning the page, whilst “Lord Chief Justice discusses necrophilia” would have been overly sensational – yet no less representative of the wide-ranging subject-matter. The most important part, in fact, is neither of these subjects, but what Lord Judge has to say about the proper role of senior judges in giving a view on pending legislation. The closing paragraphs sum it up well:

‘The reason that I’m here [in front of the Lords Constitution Committee] is because, under the constitutional reforms, the lord chief justice can’t come to speak in parliament. I would have not been unhappy to have been able to come to say what I had to say in parliament about the Public Bodies Bill, which really does impinge on judicial independence…..

If there’s no broad consultation [on acts of parliament], there’s something rather worrying about judges going to have private words with attorneys general or lord chancellors. I don’t think that the lord chief justice of the day should say to the attorney general of the day, “I think this proposal is bunkum”, because it’s interfering with the political process.’ Judge said that he would rather advise the attorney general of the practical consequences of a proposal’.

As an aside, those of you already puzzled by the English language will note two things: one is that apparently cumbersome phrase “I would have not been unhappy to have been able to come…”, every word of which is in fact necessary to convey all the shades of meaning which Judge intended; the other is that a plurality of one kind of law officer is correctly described as “attorneys general”, whilst multiple holders of another are “lord chancellors”. I cannot tell you why “attorney generals” and “lords chancellor” would be wrong, only that Lord Judge has his “s”s in the right place. You can, of course, have only one attorney general and one lord chancellor at a time, so there is a neat (and doubtless unintended) reminder that the LCJ can stay until retirement whilst the law officers of the crown can be heaved overboard by prime ministerial whim (“tell me, Attorney General, whose job rests in my hands, are we justified in going to war with Iraq on the strength of this dossier, as I so badly want to do?”) or political defeat.

The most important part of Lord Judge’s message reported in the article relates to the quality of legislation. This is in part a function of quantity – Labour liked to pass its every whim into law in its enthusiasm for making us all behave as it thought we should, and in making the state responsible for every aspect of our lives. Nothing was too big, or too small, to be worth an act of parliament. The revising role of the (generally high-quality) House of Lords could not keep up with the torrent of crap pouring out of the lower house, and one suspects that parliamentary draftsmen are not what they used to be. Lord Judge was more specific, as he “criticised the continuing move towards overly prescriptive acts of parliament, and called instead for more broadly worded legislation”. You cannot, he said, “legislate for just about every possibility”. He gave an example:

‘I’m not being facetious about this, but do you know there is a guideline for judges passing sentence on those rather odd people who have sexual intercourse with a corpse?’ he said. ‘There’s a different possible approach depending on whether it’s with the same corpse, or a different corpse.

How about that for hitting multiple targets in one go (even if you ignore the unsavoury and unintended double-entendre in the last sentence)? Lord Judge illustrates his prior point about overly-prescriptive legislation AND his next one about how judges need to get more media-friendly, with a single headline-grabbing example. He needs a better marketing department though – that worthy-but-dull headline and publication just before Christmas will have lost him the audience which his wide-ranging comments deserve.

Kings and politicians come and go, but judges go on for ever (you know very well what I mean). The Statute of Proclamations barely outlived its royal inventor, being repealed in the year he died along with other repressive legislation of his reign. Woolas can hardly have expected that just one more lie would matter so much after eleven years of a Blair-Brown government. At least two senior Labour figures, Jacqui Smith and Ed Balls, have accepted since leaving office that Labour should have taken more care with the balance between state security and individual liberty, though both have personal rehabilitation in mind (Smith is forever tarnished by her expenses claims, but Balls has prospects if he can cast off his well-deserved reputation as a statist bully).

If our freedoms were left in the hands of people like this, they would have long been sacrificed to some short-term political purpose. Those who rail against “unelected judges” may care to consider what lengths an elected representative will go to in order to stay that way.


About Chris Dale

I have been an English solicitor since 1980. I run the e-Disclosure Information Project which collects and comments on information about electronic disclosure / eDiscovery and related subjects in the UK, the US, AsiaPac and elsewhere
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