Sunday, December 21, 2003
I Get More Mail
Interesting feedback on my 'Dispatches' post. I figured the points raised were probably of more general interest, so I'll address them here.
When I refer to the need for scrutiny, I'm really referring to public scrutiny of the legal process itself. All of the judges featured in 'Dispatches' refused to co-operate with the program, a typical comment being that the judge 'wouldn't be questioned by a TV company'. How come journalists, who insist on shot-by-shot briefings in Iraq, take this sort of thing with nary a whimper ? For once, the cliché is justified: when it comes to the operation of the legal system, the public has a right to know.
As far as accountability goes, that's tied up with the definition of independence. Traditionally, parliament has made the law and the role of the courts has been solely to interpret it. Were this model still being followed, then the case for greater judicial accountability would be far weaker. However, we are now faced with the rise of activist judges who rule on what the law should be, not what it is.
Consider the execution of a relatively recent change in the law, which mandates a two-year sentence for a second burglary conviction, except in exceptional circumstances. In the first year of operation, the law was not invoked once - every single case was judged to be exceptional. You either think this is a disgraceful thwarting of parliament's will or a tribute to judicial independence. Incidentally, what you believe doesn't necessarily reflect traditional political boundaries: Blairites and paternalist Tories in the Heathite mode will tend to go one way, and union stalwarts and Thatcherites the other. Whatever, but it shows the difficulty parliament runs into trying to draft laws that are not open to this kind of abuse.
What we have at present is the worst of all possible worlds. Judges act as though the parliament's output was labelled 'for advice only', and face no sanctions whatsoever. As a result, the administration of justice becomes increasingly arbitrary and estranged from the views of the public at large. Where judges have, through incompetence or arrogance, acted outside of the law, then they should face sanctions. That's the key point, of course, judges should only be disciplined for ignoring the law. Provided this rule is followed, and the media remains vigilant, then there is little risk of politicians using the disciplinary process to influence judges.
My correspondent reminds me that the alternative interpretation of judicial independence refers to the appointment of judges. Should politicians have a role in appointing judges ? I 'd say ideally no, but that battle may be lost already. It's hard to believe the rise of (for example) Dame Brenda Hale is unconnected to the fact that, like New Labour itself, she is rabidly feminist. I'm not optimistic about whether we can put this genie back into the bottle.
Paradoxically, judicial independence in presiding over cases may require politicisation of the selection process. If Howling Mad Hale were a mere interpreter of the law then her extreme anti-family views would be irrelevant but, given that she will be allowed to (seemingly) pluck law out of thin air, then it's a serious matter that her views are rejected by the vast majority of the public. Add in that we already have a pretty well politicised judiciary, and it seems the best we can do is to bring it out in the open. In this respect, we can learn a lot from the US, where the whole process is much more open. Certainly, it is hard to believe Labour would have put forward Dame Brenda had they known the public would have the chance to see her explain to a select committee exactly what she thinks of marriage.