An unwelcome season of judge-bashing

The feud between the courts and certain politicians threatens good government,
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The Independent Online
Lord Mackay, the Lord Chancellor, is in dispute with cabinet colleagues about the present season of judge-bashing, according to newspaper reports.

The season opened back in October at the Conservative Party conference. The party chairman, Brian Mawhinney, urged people disturbed by lenient prison sentences to protest to judges and magistrates. Public opinion does have a part to play in the sentencing process - but it is at the stage of laying down general sentencing guidelines, not at the level of the individual case, where the full facts are rarely reported. Sentencing by opinion poll, or worse still under the threat of intimidation by hate mail from the ill-informed, is no way to ensure that justice is done. It comes very close to the rule of the lynch mob rather than the rule of law.

After Dr Mawhinney's exhortations, the Home Secretary, Michael Howard, announced proposals to change the way sentences were passed, including "two strikes and you're out" mandatory life sentences for some crime. These proposals have been interpreted by many as criticising judges for lenient sentences and threatening to take away their discretion to do justice according to the circumstances of each case.

The wisdom of these changes remains for debate. But as DA Thomas, Home Office adviser and the country's leading authority on sentencing, has pointed out, after the welter of disastrous recent sentencing legislation (such as the ill-fated unit fine scheme, which was passed only to be repealed almost immediately), the Home Secretary would do well to listen to the views of those, such as the Lord Chief Justice, who actually have to run the system.

Of course, it is for government to govern and for ministers to propose policy changes. But it is hard any longer to resist the conclusion that there is an orchestrated campaign in which some politicians consider it expedient to attack the judges. What is particularly surprising is that these politicians are from the very wing of politics that would normally be expected fiercely to defend fundamental aspects of the constitution such as the independence of the judiciary.

The attacks could be ignored, perhaps, if they were limited to wild calls from backbenchers, such as the suggestion by one MP last week that judges should be paid a percentage of the fines they imposed so as to encourage them to give tougher sentences. But they seem to be coming from very senior politicians. Take, for example, last week's leaked "speech that never was". Lord Mackay was going to warn judges not to overstep their powers by using judicial review, reported the Daily Telegraph, only for the Lord Chancellor to issue an unprecedented denial that he ever had, or would, make the remarks attributed to him. Labour has accused Tory Central Office of being responsible for the leak.

These attacks are often ill-informed. Some attacks on judicial review decisions, for example, overlook three important factors: judicial review is nothing new and is often used in a way that those who are now knocking it would applaud; it is about upholding the supremacy of Parliament rather than denying it; and it is helpful rather than hostile to good government.

The principles on which the courts act trace their origins to Parliament's revolution of 1688. The court is there to review the legality of a decision rather than its correctness. Parliament cannot be expected to lay down detailed rules for every individual case, so there has to be a means of ensuring that the myriad bodies which carry out the policy laid down by Parliament do so within the intended bounds. This is no more than a practical application of the rule of law.

There is legitimate doubt about whether the courts should go further still. But the cases about which press comment has been greatest are not to do with courts interfering with what Parliament has done, but with whether ministers have been carrying out Parliament's will.

The greater use of judicial review this century is neither surprising nor undesirable. Cradle-to-grave care has created a huge administrative machinery whose acts affect millions of citizens. It is no longer possible to say, as AJP Taylor did of the pre-1914 Englishman, that he could pass through life hardly noticing the existence of the state beyond the post office and the policeman. The courts are there to protect the citizen against wrong use by these bodies of their great powers.

Many decisions would be applauded by the Conservative Party: the striking down of Ken Livingstone's "Fare's Fair" policy, in which the GLC was to levy a supplementary rate to reduce the cost of London transport; Ealing Borough's refusal to stock in its libraries newspapers to whose proprietors they were politically hostile;Lambeth Council's decision to thwart a requirement to increase rent by loading all the increase on to one house, upping its rent from pounds 7 to pounds 18,000 a week.

Now that Parliament's power has been weakened by the party system, the courts' powers are needed to prevent ministers going beyond what it is for Parliament to decide - that was what lay behind the striking down of Mr Howard's criminal justice compensation plans. But again, there is nothing new in this.

Ultimately this helps good government rather than hinders it. It makes for better administrative decisions. It also makes intrusive government more acceptable, because citizens know they have the protection of the courts where legal bounds are overstepped.

Judges are not itching to influence the social and economic framework of the country. They are trying to do their job of making sure the law is obeyed. Responsible politicians must see that the present row is dangerous and shortsighted. The judges are a critical part of our freedoms and liberties and should not be made a political football. It is time for the Lord Chancellor to say that loudly and clearly. And for the Prime Minister to support him.

The writer is a QC and chairman of the Bar Council.