The long arm of the law

Government clashes with the judiciary are mounting - and they won't stop under Labour
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The Independent Online
THE legal system is beginning to make the Government look like a remarkably inept burglar. It seems that every time a minister makes a controversial decision, the courts find his fingerprints at the scene, a witness to identify him and a gaping hole in his alibi. Inevitably, the convictions are mounting up.

Last week Michael Howardwas in the dock again. Mr Justice Sedley ruled that the Home Secretary did not have the power to exclude the Rev Sun Myung Moon, founder of the Moonies, from Britain. The judge used the favourite word of the new breed of judicial activists: Mr Howard had perpetrated an "unfairness" because he had not allowed Mr Moon to put his case.

Few can have been surprised by the verdict - it was the eighth case Mr Howard has lost in 18 months - but for some it was the last straw, provoking a Conservative backlash that has shocked many lawyers.

The Daily Mail led the charge, attacking Sir Stephen Sedley for attending a Communist summer school in his youth and saying that his Moonie judgment and speeches showed that he was mocking democracy and attempting to set the judges up above Parliament.

A couple of days later the Daily Express was denouncing "the sickness sweeping through the senior judiciary - galloping arrogance". Too many judges, it declared, "talk as if they were members of an unelected Supreme Court".

There have been signs of this anger before. Lord Woolf, the law lord, was accused of being soft on crime because he produced proposals for prison reform in 1991 which the Cabinet finds too liberal. Lords Nolan and Scott, brought in to investigate sleaze and arms-to-Iraq, have been the target of whispering campaigns for doing what good lawyers do: asking hard questions and expecting detailed answers.

And it is not only in the right-wing press and Westminster tea-rooms that judges are criticised. Last month Brian Mawhinney, the Conservative Party chairman, came close to recommending that judges - who are meant to reach their decisions free from political or popular influence - should be put under outside pressure. He told delegates at the Conservative Party conference to write to the courts and insist that "judges and magistrates are your representatives. Praise them when you agree with them. Let them know if you are dissatisfied".

In September, when Mr Justice Dyson found that Mr Howard had unlawfully delayed referring the cases of five IRA prisoners to the Parole Board, the Home Secretary's response was revealingly personal. "The last time this particular judge found against me, which was in a case which would have led to the release of a large number of immigrants, the Court of Appeal decided unanimously that he was wrong," he said.

Leading lawyers see a new extremism behind such attacks. Lord Lester, the Liberal peer and lawyer, could barely conceal his contempt last week. "Ignorant and prejudiced criticism should not distract people from realising that it is the job of the judges to protect the individual against abuses of power and defend the rule of law," he said.

Yet Lord Lester would be the first to accept that the judges have changed. The once-timid English judiciary is today far more willing to take on government. Judicial review - the process that allows the courts to remedy some abuses of power by the state - has grown from being a minor branch of the law to its central attraction. In 1974 there were 160 reviews; last year there were almost 3,000.

Led by 12 law lords widely seen as the most formidable for decades, the judges are becoming vigorous and assertive. Lord Hoffmann, one of the new law lords, summed it up two years ago. "The courts are less reluctant to interfere with what would once have been regarded as the minister's prerogative," he said. "Partly it is a matter of confidence: as a judge, you do it once and you don't get fired, so you do it again. You sit there and your first thought always is, 'Is this chap being fairly treated?', and if not, your next thought is, 'Am I in a position to put it right?' "

More often than not the answer from the judges is "yes, I am" - a response which leads ministers to cry that the unwritten constitution is in danger.

This shout was heard loudest in September, when Lord Taylor, the Lord Chief Justice, attacked the Government's plans to extend the use of indeterminate life sentences (a move that takes away from judges the power of deciding how long a prisoner spends in jail and gives it to politicians at the Home Office).

Mr Howard replied that it was for Parliament to decide what the law should be, not judges. One senior government source said: "If the judges are stupid enough to put themselves in the firing line by opposing an absolutely central package, it will be they who are damaged, not the Government."

This is all a foretaste of a central battle of the next election. The Conservatives have given notice that they will oppose Labour plans for devolution, a bill of rights and reform of the House of Lords by saying that they are defending Parliament and the traditions of British government.

The Opposition argues that it is the Conservatives who have been overturning the established system of government, by stripping the powers of local authorities, setting up around 5,500 undemocratic quangos and quietly accruing what are known as "Henry VIII powers" to make regulations and even repeal acts of parliament without consulting the Commons. Without a written constitution, Labour says, the only brake on this has been the judiciary.

In Mr Howard's most famous defeat, last April, the judges insisted their concern was Parliament's power, not their own. The law lords threw out his plan to cut the compensation paid to victims of crime without asking for parliamentary consent. Mr Howard's behaviour was "constitutionally dangerous", they said.

Legal experts insist it is not just the judges who have changed, but the politicians. One senior QC, who often represents the Government and thus does not want to be named, said last week: "Twenty years ago, if there was doubt about the legality of a measure, ministers would drop it. Now the Government will push ahead with anything if it thinks it can get away with it and many judges think they have no choice but to respond."

In the resulting legal conflicts the left has cheered the judges on. But with a Labour victory likely at the next election, some on the left are wondering whether the courts will continue to savage ministers when the Conservatives have gone. Lord Irvine, the Shadow Lord Chancellor, has already warned against "judicial supremacism" and "exorbitant" claims by judges that they are more powerful than Parliament.

The warning is unlikely to dampen the growing confidence of the courts, in part because the many constitutional changes that Labour plans would inevitably bring more cases to court and give the judges more control. For example, turf disputes are certain between the new devolved governments and Westminster. And Labour's promised bill of rights would allow the judges to strike out measures passed by Parliament - such as the abolition of the ancient right to silence - which threaten fundamental freedoms.

Constitutional radicals see nothing wrong with the rise of the judiciary. Every modern democracy with a written constitution and guarantees of basic rights has to have judges holding the ring and balancing competing claims, said Anthony Barnett, of the reform group Charter 88.

But even Mr Barnett accepted that when the judges finally emerge as actors on the political stage, the public will want to know who they are and what they think, and will demand that the secretive process of their appointment is exposed to scrutiny. The days of anonymous judges, hiding behind wigs and unknown to anyone but friends and families are all but over.

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