Alan Watkins: Meddling judges, three. The people, nil

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The Independent Online

Shortly after he became Secretary of State for Education in 1965, C A R Crosland found himself in difficulties over the reorganisation of the secondary schools in Ealing. The cause of the trouble was a decision by Mr Justice Edmund Davies frustrating the plans he had in mind for the youth of the borough. Crosland was most annoyed. Clearly, he said, the judge had no conception of the preoccupations of ordinary voters. He was obviously the product of Winchester or of some similar, even if less exalted, place of learning. He intended to mount an attack on him along these lines without delay.

I said he would be extremely foolish if he did, for the learned judge came from Glamorgan and had been educated at Mountain Ash Grammar School before going on to King's College, London. With that capacity which only the very clever display for ignoring or denying anything that does not suit their thesis of the moment, Crosland said he did not believe me. What I was telling him could not conceivably be true. However, the attack on the judge never took place, whether because he had discovered that what I had told him was indeed true or because the department had advised against it or because he had been too idle to make it after all, who could tell? This was at the beginning of the period of judicial activism. Crosland was by no means the only Labour minister of that time to find his decisions questioned by the judges. Peter (now Lord) Shore found himself in trouble over Laker Airways. There were other cases, too.

They mainly came about through the development of "judicial review". The courts concluded in the 1960s that they could review ministerial decisions if they had been arrived at by the wrong procedures or been based on a misunderstanding of the law or were so unreasonable that no reasonable minister could possibly have made them in the first place. Conservative Home Secretaries of the 1990s, with the exception of the short-lived Mr Kenneth Clarke, were particular objects of the wrath of Her Majesty's judges. Indeed, there was a period when hardly a week was complete unless Mr Michael Howard had been on the receiving end of a severe judicial wigging. Mr Jack Straw, though equally if not more reactionary, escaped lightly by comparison.

The result was that the judges became even more unpopular in Conservative than in Labour circles. Whereas previously the latter had seen them as enemies of the working class and of progressive thought generally, and the former had assumed them to be stern guardians of order and property, now the positions were reversed. Tories took to asking: who do these unelected, unrepresentative judges think they are? Labour politicians were more ambiguous. It would be too cynical to say that they welcomed judicial action against Conservative governments, but regarded any comparable assault on Labour as an unwarranted attack on the representatives of the people. They were – as they remain – divided and confused.

Europe played its part in all this. It certainly played the principal part in turning the Tories against the judiciary. The editors of the Daily Telegraph and the Daily Mail are very different characters. But it seems to be equally impossible to get it into their respective noddles that the European Communities Act 1972 made European law, in cases of conflict, superior to the law of the United Kingdom. This was what the Spanish fishermen's case was about, where Brussels legislation was held to over-ride a Westminster statute.

Since then we have had the Human Rights Act, which incorporates the European Convention on Human Rights into UK law. The Lords of Appeal have already given their opinion that ministers' appearing as judges in their own cause while deciding appeals in planning cases does not infringe the Act. This seems cautious enough to me.

The decision of Mr Justice Turner in the case of Dr Louis Farrakhan is not cautious at all. He is to be let into this country, following a ban of 15 years from successive Home Secretaries, because of this recent Act. The judge said he would be giving his reasons in October at the beginning of the new law term. This is a bit like me urging Conservatives to vote for Mr Clarke rather than for Mr Iain Duncan Smith, adding that I shall be giving my reasons after the result of the election in September.

Ms Beverley Hughes said she thought the judgment "disappointing". She is the minister who now finds herself on radio and television after the others have made a quick getaway. She carries the Can of State – an ancient office which comes to public notice only in August. But I agree with the judge's decision, as most of the inhabitants of Brixton appear to do also. I doubt, however, whether it has the support of the majority in the country. And Mr David Blunkett will be furious, even crosser than he was about that television programme which, owing to his blindness, he would have been unable to see in any event. One of the most closely guarded prerogatives of the Home Secretary, the power to prohibit entry into this country, has now been severely curtailed.

The Government will, however, be glad that Mr Justice Macer rejected Ms Anna Ford's attempt to overturn the Press Complaints Commission. The commission had refused to condemn the Mail for publishing a long-lens photograph of her, her companion and her two children on a foreign beach. Ministers do not want to offend the Mail or the other low papers which go in for this sort of thing. Much was made of the public nature of that part of the beach. This always seemed to me largely irrelevant. What about privacy in a public lavatory (assuming, that is, you can find one)?

Ms Ford, however, was not asking the judge to create a new right of privacy but to find that the commission had misinterpreted its own rules. When he said that her case had "no merit" he was using a lawyer's term of art for saying it did not stand up legally. The last thing he was talking about were the substantive merits of the case. So we might be spared any further articles from Lord Smugboots Wakeham.

In Mr Ken Livingstone's case, Mr Justice Sullivan adopted a similar approach. He did not seem to think that the plans for public-private investment in the London Underground were any good at all. He simply ruled that the Government rather than the Mayor or the Assembly would have the last word. So ministers have won two out of three cases, and the people (assuming they are against Dr Farrakhan's entry) have lost all three of them.

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