Now judges speak out, but should we listen?

The new, outspoken judiciary must remember that it is a government's job to make policy, argues Lindsay Farmer

The judiciary has unexpectedly become the darling of the political left after their criticisms of the Conservative government. The sentencing White Paper has been condemned. The courts have used their powers of judicial review repeatedly to censure the activities of ministers. Judicially-led inquiries have boldly faced up to political issues that ministers thought to sweep aside. This goes further. It is common now to acknowledge the quality and intellectual strength of the current bench, something that would have been unthinkable 8 or 10 years ago. Interest in certain judges and legal offices, such as the recently retired Lord Chief Justice Taylor and his replacement, Lord Bingham, extends well beyond the legal profession. Judges now commonly give personal views on issues such as a Bill of Rights - for many years apparently the personal crusade of Lord Scarman. (Until recently one potent argument against a Bill of Rights was that it would be of little value without a judiciary able and willing to enforce it.) We are said to be witnessing a transformation of the judiciary, on the eve of a fundamental change in our political and legal culture.

We have long regarded the judiciary with detachment. Judges are reactionary, siding with the establishment when political conflicts reached the courtroom. They have been ridiculed for outdated beliefs and a touching failure to keep up with events or personalities. The judiciary in turn has maintained a strict silence, so that for many years public judicial pronouncements were largely confined to the remarks of trial judges in the course of the sentencing of high-profile crimes, often the source of tabloid outrage and broadsheet indignation. Few judges broke the self-imposed ordinance of restraint to pronounce on political issues. The occasional public utterances of high-profile judges such as Lords Denning or Hailsham owed their notoriety to their ill-considered defences of the forces of the establishment. Our detachment from the judiciary was seen to be mirrored by their detachment from everyday life and their attachment to the technical and arcane business of the law. This came to be understood as the meaning of judicial independence.

The relaxation of the rules preventing the judiciary talking to the media has allowed the individual judges to raise their profile. Britain's involvement in Europe has demanded that the judiciary broaden their horizons and brought constitutional reform to the top of the political agenda. The very longevity and style of the Conservative government has forced a re-examination of the relationship between executive, legislature and judiciary (though the more radical appointments have been made by the government now feeling the force of the law). It is not surprising, however, that politicians should now question the independence of the judiciary, for this new activity differs sharply from the accepted understanding of judicial independence.

However, we should not get carried away in either criticising or defending the new judiciary. It is clear that the detachment with which the judiciary were once regarded (and regarded themselves) has been lost. It does not follow that independence has necessarily been gained, any more than the previous detachment amounted to independence. The situation that is developing raises serious questions about the nature of judicial independence. Judicial criticism may provide a rod with which to beat an ailing government, but this enthusiasm has hindered a closer examination of the arguments in the present conflict and the question of whether judges are defending an acceptable position. Some of these difficulties become clear in a consideration of the recent conflict over sentencing.

Michael Howard's proposed scheme for minimum and mandatory sentences has been roundly criticised by Lord Donaldson and Lord Taylor. That the proposals are unjust and have little chance of working in practice seems incontestable - few in the field of criminal justice support them. But what of the deeper arguments? The criticisms are based on two broader assumptions, both flawed.

The first is the accusation that the Home Secretary is interfering with the judicial function. Sentencing, it is asserted, is a matter for judge alone. This criticism confuses two things. On the one hand, there is the independence of the individual judge to determine the appropriate sentence in a particular case within certain broad parameters. On the other, there is the duty of government to establish that framework. It is surely indisputable that a sentencing policy is a central part of any attempt to deal with crime and that this must come primarily from government. It is disingenuous to suggest otherwise, and as far as the judicial role goes it surely makes little difference whether these are maximum or minimum sentences. Lord Taylor may rightly have used his position to question the efficacy of certain policies, but it is surely an essential function of government to determine policy in this area.

The second criticism is that such moves deeply compromise the overall independence of the judiciary by attempting to fetter judicial discretion. The problem is that it is not clear what is meant here. There is no clear doctrine of the separation of powers in Britain, just as there is no written constitution. The ideas of judicial independence that arose from the Settlement of 1689 were to protect senior judges from removal from office if they did not comply with the wishes of their political masters, and to ensure that judges could not be bought by providing for their financial security. No one pretends that these are the issues here. Nor is it clear that such moves necessarily compromise the political independence of the judiciary if, as I have suggested, criminal justice policy is for the government of the day to determine. The importance of political independence is, in any case, open to question. As Professor John Griffiths has argued, this century the judiciary has a record of being "more executive-minded than the executive" and there is little reason to trust this leopard simply because it has changed its spots. Judicial activism of this type is a double-edged sword where there are no other constitutional constraints.

So, what is the version of judicial independence that is being defended? No more and no less, it seems, than that all members of the judiciary should be free to perform their duties as they see fit, according to law. The problem is that this picture of the judiciary exercising their independence through the wielding of an unfettered discretion overlooks the complexities of the judicial role in modern government. It fails to distinguish between the different functions of judges and the different constitutional responsibilities of different levels of the judiciary. The independence required in sentencing a petty offender is different from that exercised by the Lord Chief Justice overlooking the criminal justice system, which in turn differs from that exercised by judges using the power of judicial review. The tradition of independence that is appealed to in defence of the sentencing powers of the judiciary is based on an anachronistic view of political institutions and their interdependence. If it is the case that the judicial role has been changing as a result of fundamental changes in the political institutions of this country, then it is surely also the case that these changes should be reflected in the changing understanding of that role. If we are not sorry to see the end of judicial independence conceived of as detachment from political life, it would be sad if this were to be replaced by an activism without responsibilities. This points, above all, to continued shortcomings in the structure of accountability of government that require a more radical resolution than can be offered by the members of the new judiciary.

The author is lecturer in law at Birkbeck College, London.