Time to judge for ourselves
Watching assorted judges in Britain and Europe give John Major or Michael
Howard a bloody nose has become a favourite spectator sport among critics
of the government. But before investing any faith or hope for the future
in the charitable actions of the courts, ask yourself a question.
What if the decision goes the other way? What if the judges come down on
the side of the government ministers? What could we do about it, standing
on the sidelines of the legal dispute (or sitting in the public gallery
of the courtroom)?
Once upon a time, those seeking protection from above against oppressive
governments might have sought sanctuary in the church. Now they are more
likely to look to the modern, secular institutions which stand above us
mere mortals - the courts at home and in Europe, or the tribunals, inquiries
and other quasi-legal bodies which hang on to the hem of the judges' robes.
For instance, if today you want to fight for the rights of workers, or of
minorities like refugees or lesbians and gays, you do not try to organise
popular protests. Instead you organise some legal aid, stick a stack of
papers under your arm, and beat a path to the door of the Euro-courts or
the House of Lords to plead for justice; alternatively you could politely
ask the leaders of the parliamentary parties to introduce a Bill of Rights,
giving judges the power to protect the oppressed.
In general, if you are looking to challenge any aspect of authoritarian
government, you are no longer expected to turn to the traditional bedrock
of democracy - demos, 'the people'. Instead, it is now normal practice to
leave it to the law lords or other members of the great and the good to
put the politicians in their place, through such devices as Lord Nolan's
inquiry into corruption and standards in public life, or Sir Richard Scott's
inquiry into the arms-to-Iraq-and-lies-to-parliament scandal.
There is, however, a fundamental error of judgement underpinning this new
cult of the judges. The tensions between the judiciary and the Tory government
have nothing to do with any struggle for justice. The judges have simply
stepped in to try to regain some public legitimacy for the institutions
of the state, at a time when the House of Commons and the politicians are
in the dog house. The idea behind this self-serving establishment strategy
is that, untainted by scandal or party bias, m'luds can re-establish some
confidence in the British system by appearing to counter the worst excesses
of the desperate men of Westminster.
As James Heartfield details elsewhere in
this issue of Living Marxism, no matter how much the courts might
seem to be standing up for fairness, the consequences of this process are
profoundly undemocratic. It involves a further concentration of power and
influence over society in the hands of unelected judges, lords and officials,
be they in Brussels or in London. As such, it must mark another step away
from a truly democratic system of government.
Critics might say that they have no time to consider such general democratic
principles, given the urgency of getting the courts to protect minorities
and victims of injustice against mistreatment at the hands of the government
and the majority which it claims to represent. But democracy and accountability
are not abstract principles. They are practical matters to do with who has
the power to decide what happens in our society. And handing the courts
the responsibility for resolving political issues means allowing judgements
that affect our lives to be taken further out of our hands.
So, what if the decision goes the other way? The belief that a judicial
review or industrial tribunal can provide a refuge from bad government assumes
that the outcome of cases will always go the way you want them to. It requires
us to put our faith in the wisdom and neutrality of the individual judges
and officials presiding over these bodies, to take at face value the much-vaunted
'independence' of the British judiciary. But the one thing which the judges
are truly independent of is democratic control and accountability. They
serve the interests of the ruling elite, and they do so in the knowledge
that, whatever they decide, we cannot touch them.
To whom are the top judges accountable for the rulings they hand down? Like
Solomon, whose judgemental wisdom they lay claim to, it appears that in
practice they are accountable only to God.
The top three tiers of the judiciary in this country - the law lords, the
appeal court judges and the high court judges - are appointed by the government
acting in the name of the Crown. Once they have their noble behinds on the
bench, these judges are all but impossible to remove. Their position remains
unassailable so long, the law says, as they are 'of good behaviour' (and
even then, the record shows that judges can preside over gross miscarriages
of justice and be convicted of a criminal offence them- selves without infringing
the 'good behaviour' rule). A senior judge can only be forcibly removed
from office after motions have been passed by both houses of parliament.
Little wonder that only one has been sacked in the 300 years since
the rules were established, and that was back in 1830.
The 'independence' of the judiciary is traditionally presented as a safeguard
against political interference in the judicial process by the government.
More importantly for the purposes of today's debate about democracy, however,
it should be seen as insulating the judges from any measure of popular recall.
For independent, read unaccountable.
No matter how fair-minded or egalitarian the new generation of judges may
seem (and they have all been on the race-awareness courses to learn the
language of the nineties), the trend towards giving them a greater supervisory
role in public life is dangerously anti-democratic. It separates the exercise
of power still further from the electorate. After all, we can at least get
rid of a government - which is one big reason why being governed by crooked,
bankrupt, but elected politicians is preferable to being lorded over by
esteemed but appointed judges.
There are far larger questions at stake here than any finer points of constitutional
law. Looking to the European or British courts and quangos for protection
against the government means accepting that power is arbitrary; that it
rests in the hands of an elite few, and will be exercised according to the
balance of their opinions and judgements. The rest of us are reduced to
unpaid cheerleaders at the contest between the Euro-court and the British
cabinet; or, at best, to the role of a stage army, to be brought on briefly
at election or referendum time to lend support to our champions.
The real issue in a democratic society should be how we can gain more power
ourselves, rather than relying on the arbitrary favours of these unaccountable
individuals and institutions. Yet more than ever before, that is the one
element which is absent from the discussion today. Alongside the widespread
sense of bitterness about the way things are, there is a general feeling
that people themselves are powerless to do anything about it. Perhaps it
is this, above all, which has encouraged opponents of the government to
invest their hopes in the courts.
The feeling of impotence is understandable enough. The old unions and collective
organisations through which working people once sought to influence events
are long gone, and nothing has arisen to replace them for today's generation.
The result is the creation of a fragmented society of atomised, vulnerable
individuals. But to hide behind the robes of the judiciary offers no solution
to that problem. Indeed it can only intensify the feeling of powerlessness,
the sense that somebody else will have to sort out what is to be done.
People might still have the vote, but they have no political alternatives
to vote for or support. And so far as any real influence over the direction
of society is concerned, they are increasingly disenfranchised.
Every trend today seems to point towards the same conclusion - that we cannot
expect to have any genuine control over what happens in society. This is
reflected in what some have called the culture of complaint, the tendency
for people to see themselves as passive victims and to demand that the authorities
provide more protection against all of the risks associated with modern
living, from smoking to bouncy castles. It is reflected, too, in a spate
of compensation cases, like the youth who sued a local council which, he
claimed, had failed to prevent him from becoming a criminal. In the past,
anti-state feeling in society tended to focus on democratic demands for
more freedom and popular control. Today's criticisms of the state for not
doing enough to protect us contain the opposite message, a demand for more
regulation and supervision.
The 'new politics of protest', as symbolised by the militant opposition
to the Newbury by-pass, may seem like a breath of fresh air compared to
all this passivity and resignation. Yet they too reflect the low expectations
of what is possible today. Only local protests against the odd road are
seen as realistic. But while the new protesters are encamped up the Newbury
trees, the old powers can carry on running society and deciding on national
As the run-up to the next general election focuses attention on the future,
it is high time that we set about taking matters into our own hands in a
more meaningful way. The aim now should be to set an alternative agenda
that can represent the needs of the majority in society on the big economic
and political issues of the day. The precondition for setting that agenda
is rejecting any idea that our destiny should be decided by the Few - whether
they be cabinet ministers, judges, tribunal members or any other official
fount of wisdom. If we start to judge matters for ourselves, we will soon
find that m'luds are as guilty as the government of denying us our democratic
rights. As they say in court, all rise.
Reproduced from Living Marxism issue 89, April 1996