It’s open season on judges. Populist politicians are taking potshots at people who cannot fire back. At risk is democracy itself.
I am not suggesting for a moment that judicial decisions should be above criticism. Those unfamiliar with the robust language sometimes used by appeal judges may have been surprised when the Court of Appeal said last Friday that Mr Justice Eyre’s decision to evict asylum seekers from a hotel in Epping had been ‘erroneous’ and ‘seriously flawed in principle’.
There was no suggestion that his decision to grant an injunction requested by the Conservative-led Epping Borough Council was influenced by his own political past. A former Conservative councillor himself, Eyre stood unsuccessfully for election as a Conservative MP four times before his appointment to the High Court.
But Lord Justice Bean, who presided over the three-judge court that unanimously allowed the hotel’s appeal, came under fire over his former affiliations as a barrister, including a prominent role in the Society of Labour Lawyers. If Bean had been motivated purely by party politics, he would have been outvoted by Lady Justice Nicola Davies, who retires this month after 15 years on the bench, and Lord Justice Cobb, the newest Court of Appeal member but widely tipped as the next president of the High Court family division.
Then there’s Nigel Farage. The Reform UK leader pointed out last week that other signatories to the human rights convention – Denmark and Greece, for example – have less difficulty than the UK in keeping out refugees. That, he suggested, is because our own judges choose to interpret the convention more generously. There is room for argument over this. But the reality, as the MP is well aware, is that judges in the UK are required by statute to take into account decisions of the human rights court in Strasbourg.
More by Rozenberg
Farage went to Washington this week to tell the House judiciary committee that Lucy Connolly, who admitted inciting racial hatred following the murders in Southport last year, had been the victim of two-tier justice. At his recent news conference, he mentioned her in the same breath as a defendant accused of different charges who received no punishment at all – because he was acquitted by a jury.
A leading Conservative had gone even further. On 15 August, the shadow home secretary Chris Philp (pictured) said it was ‘astonishing that Labour councillor Ricky Jones, who was caught on video calling for throats to be slit, is let off scot-free – whereas Lucy Connolly got 31 months prison for posting something no worse’. Philp’s suggestion that those found not guilty should be punished to the same extent as those who admit guilt would be ludicrous if it was not being used to undermine public confidence in the courts.
The current Guide to Judicial Conduct says that even part-time judges should refrain from political activity that might compromise their impartiality. Less than 20 years ago, though, a politician such as the former Labour MP and law officer Sir Ross Cranston could go on to serve with distinction as a High Court judge.
Times change. In 1997, the then home secretary Michael Howard tried to persuade the law lords that he could take what we would now regard as a judicial decision – setting a minimum term for two notorious young offenders. When the appeal hearing was adjourned for the day, the two teams changed ends, and some of the judges spoke in parliament against Howard’s latest sentencing proposals.
We saw an uncomfortable disagreement earlier this year between Shabana Mahmood and the then chairman of the Sentencing Council, the much missed Lord Justice William Davis. It should never have needed primary legislation to resolve.
In the Sentencing Bill she published on Tuesday, the justice secretary asked parliament to give her and her successors a veto on all future sentencing guidelines. She described this as ‘democratic oversight’. Others may see it as undermining judicial independence.
If handled properly, it should be neither. Senior judges need to develop a better working relationship with politicians. It’s no longer the lord chancellor’s role to represent the judiciary’s interests in government, if indeed it ever was. Judges are now facing politicians who are prepared to make unjustified allegations against them out of carelessness, ignorance and even malice. However false they are, claims of two-tier justice resonate with voters.
I am not suggesting that judges need to learn the dark arts of political spin. But perhaps there is room in the lady chief justice’s private office for a special adviser – a ‘spad’ who can warn her of pitfalls ahead and smooth things over with a quiet word.
It’s not something the judges are used to doing themselves. But their authority extends no further than their courtrooms. In any public spat between politicians and the judiciary, politicians will always win.
No comments yet