Law - Judging the Judges
Behind these protests is the fear that such
attacks might allow a future government to undermine judges'
Yet subtle changes in the way that Britain
is governed mean that judges can expect more, rather than
less, criticism in the future. As the power of judges expands
into areas that ought properly to be left to the democratic
decision-making process, judges can expect the abuse and scrutiny
received by elected politicians.
Of course, media attacks on judges are nothing
new. Along with England football managers and members of the
Royal Family, the out-of-touch judge has long been an easy
target for the tabloids. And sometimes such complaints are
justified. Judges do come out with ill-advised remarks. They
impose sentences upon criminals, which people find objectionable
as either too harsh or too lenient. Anyone who has ever worked
in the court system knows that the quality of judges varies
Lord Justice Judge does have a point, though,
as much of the criticism directed at judges is misguided.
Judges are often condemned for decisions forced upon them
by the way in which legislation is framed. And it is unfair
to blame judges for the enormous increase in applications
for judicial review; these applications often result in judgements
unfavourable to the government, but the courts have no option
but to deal with them.
One of the examples cited by Lord Justice Judge
was Dame Elizabeth Butler-Sloss, who had given a ruling involving
the Proceeds of Crime Act 2002 and the extent to which lawyers
had to disclose potentially unlawful financial transactions
involving their clients (4). The ruling was criticised, even
though the problem was the drafting of the legislation.
However, the increasing criticism of judges
is not due to a lack of legal understanding. Instead, it is
the result of the handing over of power from democratic politicians
to an unelected judiciary. Since the 1970s judges have steadily
expanded their power. Judicial review has grown in scope so
that almost all areas of government activity are now subject
to intervention by the courts. This development has run in
parallel with the public's growing disillusionment with and
disengagement from the formal political process.
If society is now less deferential and trusting
towards those in authority then judges have to some extent
benefited from this. As politicians have become less trusted,
people have put their faith in judges to challenge government
and hold it to account.
Behind all this has been an odd political sea-change.
It is not so long ago that it was the left that bitterly complained
that unelected judges had too much power. Such views slowly
altered in the 1980s when the law came to be seen as one way
of limiting the power of the Conservative government. When
Labour returned to office it was committed to increasing the
authority of the courts. Political dissatisfaction with the
judiciary has now switched from the left to the right.
Developments in domestic human rights policy
have become litigation driven.
The fundamental change came with the introduction
of the Human Rights Act in 1998, which transferred even more
power to judges. For different reasons politicians and judges
alike have been coy about the impact of this piece of legislation.
The government was unwilling to make too much of what could
be seen as an undemocratic measure, and it played down the
impact of the Act.
The pretence is that while the Act has a positive
and benign effect, nothing has really changed. In truth, developments
in domestic human rights policy have become litigation driven.
Judges have become involved in policy decisions that might
previously have been made within the democratic system.
Pressure groups can be more honest about the
importance of the Human Rights Act. Non-governmental organisations
(NGOs) have been quick to see the judicial process as a valid
way of achieving social and economic change, without engaging
in the normal democratic process. In this, they are looking
to follow the example of the USA, where the power of the judiciary
is such that it has long since moved into areas of policymaking.
Although judges didn't ask for these extra
powers they must now make decisions in all kinds of controversial
policy areas. Nor can judges fall back on precedent as they
used to, as human rights law is particularly fluid. The European
Convention on Human Rights is often referred to as a 'living
instrument' that has to be interpreted in the light of prevailing
social conditions - and it also extends into unforeseen areas.
Article 8 of the Convention, the right to respect for private
and family life, can be engaged in an almost infinite number
Increased criticism is only one result of this
shift in the position of judges. Michael Beloff QC has pointed
out that when the power of judges is enlarged so that they
become involved in political decisions, politicians tend to
become more interested in how judges are selected (5). Inevitably,
changes have now been proposed in this area.
This growth in the influence of the judiciary
means that the media, the public and politicians will all
have more to say about the activities and decisions of judges.
Lord Justice Judge is right when he says that unjustified
criticism harms the judicial process. But this criticism and
interference is the inevitable consequence of giving more
power to judges. Both democracy and judicial independence
will suffer as a result.