Thursday, March 11, 2004

Minority Report

At risk of being in a minority of one amongst Right Wing Death Beast bloggers, I feel that some form of reform of the court system is both inevitable and desirable. Doubtless a system that's lasted eight hundred years must have something going for it, but it's already history. The courts are already thoroughly politicised. Look at how the courts deal with asylum seekers: they aren't interpreting law, they're performing the legal equivalent of a sit-down protest. Similarly, recall what happened when Parliament passed a law mandating prison for a second burglary conviction and made the mistake of including an exemption for exceptional cases. In the first two years of operation, every case was found to be exceptional. Never mind the constitution, these people are rendering GBH to the English language.

Judges like to babble about folks like Tony Martin taking the law into their own hands, well the biggest offenders these days are the judges themselves. These people have adopted a doctrine of judicial supremacy, whereby the law of the land, as passed by the representatives of the people, is metaphorically speaking, marked 'For Information Only'. The very same people now engaged in taking out onions when discussing our eight hundred year old constitution are the ones who shredded it by trying to impose a judicial dictatorship. The Yin of judges legislating from the bench would always call forth the Yang of Parliament exerting its control of the judicial process. No one is politicising the courts, they are already there by dint of the judge's own actions. Let's not have any bewigged fools trying to convince us that when the courts ignore the law of the land, it's democracy in action, but when our elected representatives reform how a certain group of public servants get their jobs, then we're on the road to Auschwitz.

Caveat time: yes, Nu Lab's attempts at constitutional reform are a rare mix of stupidity and malice, but that doesn't mean we should call the whole thing off. On the contrary, in many areas the courts are far to the left of Labour - if the Conservatives wish to bring in real reform in areas such as crime, family policy or asylum, then they're going to have to break the power of the courts. Let there be no mistake, not since Charles I has Parliament faced such open defiance of its authority. May I be the first to suggest a similar solution ?

More practically, there is much that can be done. For an example of one area that desperatly needs reform look at judicial appointments, the current system worked well back in the days when there was a shared set of assumptions amongst judges, MPs and the wider public. Now, in an era where far-out fanatics like Brenda Hale can become high-ranking Law Lords, it's obvious that judicial appointments are in the hands of an unrepresentative clique of activist nuts. We can't turn easily turn the clock back, so let's go the other way: open out the process, have judges appear before select committees, let Parliament vote on them. Some will say this would lead to even worse politicisation. I'd say two things: that is not possible, and public scrutiny will act as a brake on the appointment of dyed in the wool nuts. Nothing would worsen Blair's heart condition more than having to listen Brenda Hale appear on national TV talking about how she sees the role of the family.

That's the more general point, of course. No matter how nutty Nu Lab gets, they always have to keep at the back of their mind the fact that sooner or later the folks watching at home will have the chance to turf them out. Au contrair, the judiciary has been allowed to go bandit precisely because they've been freed of both public scrutiny and accountability.

Maybe, after Year 10 of the Howard government, we can restore the old system, but that's what needs to be done: a work of restoration, not conservation. The old ways are gone and nothing will reduce the chances of bringing them back like Conservatives refusing to acknowledge the damage that years of activist judges have done to our court system.

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