As the judiciary takes on the government, James Heartfield asks when
exactly did judges become the champions of the people?
H ow things have changed for Britain's judiciary. A few years ago the criminal
justice system was in tatters and m'luds were in disrepute. Judges were
found to have presided over miscarriages of justice in the cases of the
Birmingham Six, the Guildford Four and Judith Ward, where Irish people spent
up to 17 years in jail for bombings they had nothing to do with. Others,
too, were shown to have been jailed by judges who nodded through police
frame-ups: cases like those of Stefan Kiszko, a mentally impaired man falsely
imprisoned for a child rape and murder; Winston Silcott, sentenced to life
on no evidence for killing PC Blakelock at Broadwater Farm, and many more
convictions which were only overturned after the collapse of the corrupt
West Midlands Serious Crime squad.
Only a few years ago Lord Denning reflected that if the death penalty had
been in place there would have been no public outcry over the Birmingham
Six or Guildford Four. Judges were criticised, too, for their attitude to
women in rape trials, which often betrayed the belief that the victim 'was
asking for it', as Justice Melford-Stevenson put it at the Old Bailey in
Today, however, the role of the judges in miscarriages of justice is barely
remarked upon, as the judiciary pretends to a new role as the champion of
the oppressed and the enemy of injustice. Today's judges are the scourge
of the politicians and, supposedly, the defenders of the rights of the people.
In a series of high-level inquiries judges have acted to curb what are seen
as the excesses of government power and parliamentary corruption.
In October 1994 John Major established the Nolan Committee on Standards
in Public Life after a series of scandals involving Members of Parliament.
In particular, the committee was a response to the 'cash-for-questions'
scandal, when Tory MPs were shown to have acted on behalf of lobbying companies,
laying down questions in parliament at the behest of private interests.
Lord Nolan and his colleagues 'quite deliberately' went beyond their terms
of reference to set down a far-reaching set of proposals about how MPs'
behaviour should be regulated, including the establishment of a Parliamentary
Commissioner for Standards (see P Hennessy, The Hidden Wiring, p181,
reviewed on page 43).
In February, the commission headed by Lord Justice Scott reported on the
'arms-to-Iraq' scandal, where, it was alleged, ministers had secretly relaxed
guidelines on the sale of goods to Iraq, while at the same time telling
parliament that no such adjustment had been made. Furthermore, it was alleged,
ministers had allowed the directors of the Matrix-Churchill company to go
to trial for exporting arms-making equipment to Iraq, when they were in
full knowledge of the nature of the exports, even going so far as to issue
Public Immunity certificates to prevent the judge in the case revealing
the extent of ministerial culpability. Much to the consternation of the
government's critics, Scott's report fell short of a full condemnation of
the ministers involved, accepting that they did not knowingly deceive the
House of Commons.
However, both Nolan and Scott represent an important shift in the relationship
between parliament and the judiciary. For the first time in years, the judges
were telling the politicians what they could and could not do. The balance
of power between the elected legislature of MPs and the appointed judiciary
Further evidence of the changes has come in a series of high-profile conflicts
between the judges and the Home Secretary Michael Howard. The decision by
the Chief Immigration Adjudicator, Judge David Pearl, to overturn the deportation
order issued against Saudi dissident Mohammed Al Mas'ari is only the latest
rebuff for the Home Secretary. In fact, this defeat is Howard's ninth at
the hands of the courts in two years.
In March the Lord Chief Justice, Lord Taylor, openly attacked a plan by
the Home Secretary for tougher sentencing. According to Lord Taylor, the
imposition of fixed life sentences for a second violent offence would lead
to injustice and undermine the deterrence of the law. Clearly a Home Secretary
who cannot bank on the support of his own Chief Justice is not in control
of the criminal justice system. A Home Secretary who cannot serve a deportation
order without it being overturned by a judge is not in control of immigration
law. And, most importantly, a government that defers to justices Nolan and
Scott in the matter of parliamentary conduct is not in control of parliament.
What is going on between the judges and the politicians?
On the face of things it appears that the increased willingness of the judges
to challenge the government indicates their desire to stand up for liberty
and justice. In each case of a conflict between the judges and the politicians
it appears that it is the judges who stand for fair play while the politicians
are forcing through ever-more draconian measures, from fixed sentences to
summary deportations, as well as lying to the public and parliament. It
is a traditional role that the judges have aspired to in the past, to defend
liberty against the encroaching power of the state. And it is a role that
has made them more popular than they have been for a long time, as the government's
critics look to the judiciary as the last bastion of freedom against a corrupt
and dictatorial government.
But, beneath the surface, things are very different. The conflict between
the judiciary and the government is not about justice in society, but is
part of an internal struggle for authority within the British establishment
and the state. And, far from being a guarantee of liberty, the encroachment
of judicial power on the authority of parliament can be seen as a challenge
to the right of people to exercise democratic control over the decisions
that affect their lives.
The main motivating force behind the increased willingness of the judges
to interfere in government decisions has little to do with defending our
liberties. On the contrary, the strained relations are a consequence of
the problems which the establishment is having today upholding its authority
over society. The different wings of the state - the judiciary, the government,
parliament and the civil service are all pulling in different directions.
The incoherence of the British state means that differences that once would
have been settled in private are now likely to spin out of control.
In the past, judges like the Lords Nolan and Taylor, or Sir Richard Scott,
would not have been likely to break ranks with a Tory cabinet over small
matters like misleading parliament and the public or doing dodgy arms deals
or deporting Arabs. In fact, judges have long been attuned to the need of
the establishment to back up capitalist interests, even when that means
riding roughshod over other people's liberties. Sir Richard Scott's background
is indicative of the elite character of Britain's judges and their willingness
to serve that elite.
Richard Scott lists his interests as fox-hunting as well as his better known
pursuit of cycling. The son of a Gurkha colonel, he was born into the British
Empire, in the foothills of the Himalayas, and went on to be educated at
Cape Town University and Cambridge University. He became a chancery judge
in 1983, when his reputation was far from that of a critic of the ruling
classes. In 1984, the Guardian newspaper leaked the siting of American
cruise missiles in Britain, and was challenged to return the documents to
the Ministry of Defence, so that the identity of the source could be discovered.
It was Sir Richard Scott who ordered that the papers be returned, so exposing
civil servant Sarah Tisdall, who was imprisoned for six months. It is ironic
that today Scott and his colleague Nolan have taken a stand on the need
to inform parliament and the public. Sarah Tisdall was afforded no such
protection when she blew the whistle on the way that the Thatcher government
was misleading parliament over its plans for Cruise. Scott further showed
his willingness to defend the interests of government and business in 1985
when he granted an injunction against 'mass-picketing' in South Wales during
that year's miners' strike. Hardly a champion of the people.
If the judges are unlikely critics of government, it should also be said
that the politicians' activities are hardly out of the ordinary. Cash-for-questions,
after all, is only a more explicit version of the close links between the
Conservative Party and big business that have been its hallmark. Why did
anyone think that companies like Hansen's and British Airways were bankrolling
the Tories to the tune of millions of pounds if it was not to seek influence?
Nor for that matter is it a great departure from the norm for government
ministers to support the British arms industry, or indeed to curry favour
with the Saudi government by silencing its critics. Margaret Thatcher used
to call it 'batting for Britain', something she was proud of, and by no
means a case for inquiries or reports.
But what was once acceptable government practice today strikes many people
as grotesque corruption and intrigue. This change of mood is not to do with
any specific action of the government itself, but rather is a consequence
of the disintegration of the political system through which the state used
to cohere and pursue the interests of British capitalists.
The government's claim to unchallenged authority has traditionally rested
upon its popular mandate, which had to be established through the party
system of debate and elections. No other power could challenge a cabinet
claiming to act upon 'the will of the people'. In the constitutional crisis
of 1909-11, the Liberal prime minister Herbert Asquith faced down the House
of Lords which had refused to pass his chancellor Lloyd George's 'people's
budget'. The Lords' veto on finance bills was overturned after Asquith fought
an election on the issue. The supremacy of the Commons over the Lords was
sanctified by the popular mandate, clarifying the hierarchy of power within
the state itself for the next 80 years. (Notably, while the Liberal government
was intimidating the Lords in the name of the people, it was also sending
in troops to quell the South Wales miners and anchoring warships at the
mouth of the Mersey to cow strikers in Liverpool - demonstrating the limits
of popular power in parliament.)
The authority of governments has since rested on their claim to an electoral
mandate, putting the executive beyond challenge. But in recent years the
claim of parliament and the politicians to popular support has become less
plausible, and their authority, in consequence, more open to question. The
political system has suffered a precipitate decline in public legitimacy,
and both of the major parties have experienced a crisis of identity, leaving
them bereft of effective policies. They have lost touch with their campaigning
bases simultaneously. The government is deeply unpopular, yet the opposition
does not enjoy serious public enthusiasm either. Any change in government
is unlikely to represent a decisive movement of popular support, but instead
would be part of the anti-incumbency sentiment that has turned out ruling
parties in recent elections from Spain to Australia.
Without the cover of popular support and legitimacy, the dirty business
of capitalist government sticks out like a sore thumb. So the consultancies
that MPs have enjoyed for years suddenly make parliament look like what
the Italians call 'tangentopoli'--the city of bribes. And the unexceptional
law-and-order measures that Michael Howard has introduced can suddenly look
draconian and self-serving, designed to secure the core of Tory support
rather than reaching out to the country.
The judiciary is particularly sensitive to the loss of authority suffered
by the government and the political system. As that part of the state machinery
that is entrusted with maintaining order, the judges are aghast at the extent
to which the government has exposed the grubby shenanigans of capitalist
rule. Instinctively, they are stepping in to shore up the legitimacy of
the state - even if that means challenging the government of the day as Lord
Chief Justice Taylor et al have done by attacking Howard.
It is the collapsing authority of the elected legislature and the government
that drives the conflict between the judges and the politicians. The judges
abhor a vacuum, and it is the power vacuum left by parliament that they
are rushing to fill. Where uncertainty prevails, the judges want to see
the rule of law restored to its former standing. Like the police chiefs,
the judges, once fans of the Tories' law-and-order strategy, are now less
happy to be constantly in the front line of the government's increasingly
hysterical clamp downs. What they fear is that their legitimacy will be
damaged alongside the government's, and so they are trying to establish
some distance between them.
Most of the pretexts for the judicial challenge to parliament seem commonsensical.
Arbitrary sentences and deportations, bribes and lies are hardly a sure
basis on which to defend parliamentary sovereignty. Nonetheless, the sum
total of the judges' activities is a further degradation of democracy, not
a restoration of it. Politicians hold little favour with the public right
now, but at least they are elected, not appointed by the Crown with the
advice of the Chief Justice. If a ruling party offends you, you still have
the right to throw it out of office. No such right obtains when it is the
judges who are making the law.
When the judiciary acts, it does not do so on behalf of liberty, but to
shore up the authoritarian power of the state. The fact that this parliament
is a sorry apology for a functioning democratic process should not blind
us to the consequences of a greater role for judges in deciding the course
of government. The principle of government by the people is even further
dissipated if decisions are made by bewigged Lords drawn from the ruling
classes. All the judges' authority stems from the dead weight of elitist
tradition, and all their criticisms are ranged against the presumed venality
of mere elected politicians.
In the past, judges have sought to curb parliament, too. In a lecture in
1977, talking about a turbulent strike at the firm Grunwick's, Lord Denning
bemoaned the Labour government's unwillingness to support the rule of law - which
meant in practice breaking the strike - and boasted that 'by and large I
hope we are keeping the government in order' (quoted in P Hain, Political
Trials in Britain, 1984). In the caring nineties the judges prefer to
be seen to be acting on behalf of wronged deportees than strike-breaking
businessmen, but the underlying aim is the same. Where the authority of
the state is called into question, the judges have little respect for the
democratically elected politicians. On the whole, they see them as chancers
and oiks, who are too willing to set aside the accumulated legitimacy of
the powers that be, in favour of mere electoral gain.
Behind the judges' contempt for politicians is a contempt for the electorate.
They do not trust ordinary people to decide the major questions of the day,
any more than they trust the juries to judge the cases in their courts without
hectoring and cajoling them. Instinctively, the judges mistrust the political
process for its inconstancy and surprises. At root that mistrust is a mistrust
of popular decision-making.
Accountable to none
On the other end of the scale, the problem is perhaps worse. Years of frustration
with the politicians have led many people to invest their hopes in the great
and the good to come to a more trustworthy conclusion. These days the response
to an unfavourable policy is more likely to be a call for a judicial review - an
appeal to a judge to rule against the government - than a campaign to galvanise
popular resistance to the new measure.
But calling on the judges to restrain the politicians is a disaster for
real accountability. Not surprisingly, the judges respond favourably when
asked to step into the fray, and will perhaps even talk about government
accountability and so on. But the consequence of this process is the opposite
of popular accountability. It leads only to the greater subordination of
the political process to the accounting of the appointed judges.
What seems to be a mechanism for some kind of popular pressure on government
is actually the very opposite. The greater role of the judges only formalises
the exclusion of the people from power. Rather than telling the authorities
what they should be doing, the rest of us are reduced to the role of spectators,
cheering on our favourite stars. Instead of being actors in our own right,
seeking to affect the political process in our own favour, we hand the initiative
to yet another official interlocutor. Instead of seeking to challenge the
government by building a political alternative of our own, all initiative
is handed over to another section of the ruling class. Nothing could be
more clearly designed to emphasise the loss of popular power than the fact
that people are now expected to champion judges appointed by the Crown against
the politicians they elected.
James Heartfield is convening the course
Rights and the State at The Week
conference in July.
Reproduced from Living Marxism issue 89, April 1996