'You can't take risks with liberty'

We should all be alarmed by the Government's proposed constitutional reforms, the deputy chief justice, Lord Justice Judge, tells Robert Verkaik
Click to follow
The Independent Online

Our judges are not happy. They are particularly perturbed that they were given just a few minutes' notice before being told the Government intended to abolish the ancient office of Lord Chancellor, create a US-style Supreme Court and set up a new body for selecting judges. They are not happy that so little thought has gone into what will fill the vacuum left by the reforms, so hastily announced in the summer.

At its most serious they say the reforms pose grave threats to the independence of the judiciary and the liberty of the citizen.

Some of them feel very strongly about this indeed. At a Judges' Council press conference to publicise their response, Lord Justice Judge, the deputy chief justice, even raised the spectre of a future British Adolf Hitler or Jean-Marie le Pen subverting our democracy by taking advantage of a weakened constitution. His comments prompted hysterical headlines about "Hitler Blair" and "Nazi Britain".

Afterwards Lord Justice Judge spoke to the Independent about what he meant.

"I was being pressed to give an example and the tone of the question, and I mean no disrespect, was implying that it was unreal. I genuinely hope that it is unreal. We all know that the price of liberty is eternal vigilance and you can not take risks with liberty. Every single step which reduces liberty is potentially threatening. So you have to have a constitutional arrangement, which so far as is practicable is impervious to potential threats."

He explains: "I emphasise that I do not anticipate that any of the political parties we have in the United Kingdom at the moment would dream of doing it. But with this new constitutional arrangement the future is, as I said, very long. What we have to be careful of is to ensure that the constitutional arrangements we put in place now will safeguard our liberties in 50 years time. I think we must take a long term view of constitutional change."

Lord Justice Judge says that it is important that the media and the judiciary work together to help protect our constitution from abuse.

It is a theme that is very close to his heart as his grandfather was a newspaper editor in Malta. The paper failed because he refused to bow the political pressures of the day - his even-handedness meant his paper did not receive advertising support of either of the two leading parties.

Igor Judge, Britain's first deputy chief justice, believes: "The independence of the judiciary is there for the benefit of every citizen who has to come to court and it is their entitlement. The independence of the press is also an entitlement of every citizen."

The price we pay for an independent media is that sometimes there is a glut of sensationalist stories that have no bearing on the liberty of the citizen. And as a judge he knows only too well that an off-the-cuff remark can be reported out of context to make the judge look silly or out of touch. But even this, he accepts, is part of the bargain of having a free media.

"There is a natural tension between the media and the judiciary. But both have to recognise that their independencies bear on each other's independence. You would not find a country in the world where there is a cowed media and an independent judiciary or a subservient judiciary and an independent media."

Neither institution, says the judge, must have the controlling hand.

Nevertheless the media sometimes tries to intimidate the judges by creating a hostile environment for unpopular judgements. The press also likes to portray judges as other-worldly and out-of-touch with the pressing concerns of our every day lives.

The deputy chief justice says this is not borne out in the courtroom, because what is important, he argues, is how jurors perceive judges.

"I believe that when they leave court they are generally rather impressed with the fact that judges had a grip, were in touch and understood their concerns."

Lord Justice Judge was called to the High Court bench in 1988 and made a Court of Appeal judge in 1996. As one of our most experienced judges he says there is a real concern that the British media's constant criticism of perceived "soft" sentencing may encourage vigilantism as people take the law into their own hands.

"There is clear evidence that the community as a whole thinks that judges are soft on crime at a time when we have more people in prison for longer periods than in any time in out history."

He argues that the public are now "very badly misinformed" about the use of prison. "If the public thinks that the judges are not punishing criminals appropriately that leads to a breakdown in confidence in the judicial system."

He says that this creates a number of dangerous long-term consequences including an exaggerated fear of crime and an unwillingness to report crime.

"Ultimately, it does lead to people taking the law into their own hands because they don't think justice will be done in the courts and that engulfs the innocent as well as the guilty."

Nevertheless the British unwritten constitution is a finely balanced instrument, says the judge, that allows much greater flexibility than the rigid constitutions of other countries. Consequently there is, stresses Lord Justice Judge, even greater need for vigilance.

These are the kind of sentiments that we have grown to expect from the Lord Chief Justice, Lord Woolf, who is becoming a fierce defender of the independence of the judiciary. The Government reforms have delayed his retirement, but he has said that he will shortly stand down as the most senior judge in England and Wales. The question is already turning to the succession. As Lord Woolf's deputy, Igor Judge is well placed to take over what has become a key role in the British constitution.

The abolition of the post of Lord Chancellor will inevitably strengthen the position of the Lord Chief Justice. The Lord Chancellor is the head of the judiciary responsible for the discipline of the judges. The Judges' Council is clear that these roles should be passed to the Lord Chief Justice, who by the time the reforms have been made law is unlikely to be Lord Woolf.

When Lord Justice Judge was appointed deputy chief justice earlier this year there was no expectation that the post came with assurances that he would be the next Lord Chief Justice. And Igor Judge declines to discuss the question of who will fill Lord Woolf's shoes. But at 62 years old he is still, in judges' terms, young and has already played a key role in discussions with the Government on issues that affect the judges. There are of course others in the running, such as the Master of the Rolls, Lord Phillips of Worth Matravers. And a first ever woman Lord Chief Justice would build on the achievement of Brenda Hale, who was appointed Britain's first law lady last month.

But if the judges are looking for a strong leader at a time when the independence of the judiciary is in jeopardy, no-one could be said to be better qualified to defend their position in the constitution than Igor Judge.