Alan Watkins: The judges, the tabloids and the rule of law: what Blair giveth, Blair taketh away

His instinct is to widen the dispute so the cause is lost sight of
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The Independent Online

When Lord Chief Justice Taylor was still alive (he was to die, too young, in 1997), I would sometimes pass the time of day with him in Simmonds's bookshop in Fleet Street, near the Law Courts.

"It's all these new laws," he complained.

I agreed that they were often needlessly complicated, but that a firm grasp was needed for the principles of Rugby Union Football, which he had played in his youth.

"No, no," the late Lord Taylor said, "it's the Criminal Justice Act."

I confessed myself unable to enlighten him further. He was supposed to be the expert, after all. Alternatively, it was a case of the blind leading the blind. At all events, the then newly appointed Lord Chief Justice was clearly having to work hard to master the legislation.

This was one of the first of many such measures, brought out by a procession of Tory Home Secretaries, and continued under their four Labour successors, of whom the latest is Dr John Reid. Mr Michael Howard had been by temperament an activist. He was always intervening, usually to emphasise his credentials with the Conservative Party. But Sir John Major chose to leave him to his own devices.

The present Prime Minister, by contrast, will adopt an eye-catching initiative at the drop of a No 10 press release. He will stop at nothing. Scarcely had the week passed before Mr Tony Blair or his functionaries had announced a whole review of the entire criminal justice system.

This is by now standard practice for Mr Blair. A minor scandal is turned up by The Sun, the Daily Mail or, more occasionally, the Daily Mirror. In a sensible universe, either an error is rectified or it is passed over, whether because it is in the nature of rules to produce anomalies, or because life is too short.

Instead, Mr Blair's instinct is to widen the dispute, so that the cause of the trouble is quite lost sight of. By this time, everyone has forgotten what the argument was about in the first place. Mr Blair is then prepared to go on to something else.

The Prime Minister has a well-developed technique on such occasions. He starts to talk very loudly, very fast, and very sincerely. His methods were brought to their highest point of perfection during the Iraq debates in the House in 2003. Many members, and not a few observers in the press, claimed afterwards that they had been "deceived" by the Prime Minister. But if they had been, it was only because they had chosen to be deceived.

Inasmuch as Mr David Cameron won his unedifying bout with Mr Blair on Wednesday, Mr Cameron was right: the new laws cut a third off prison sentences of those pleading guilty. The Cardiff paedophile could, what with one thing and another, serve only five years of an 18-year sentence. At some stage, one can reach for some such lifeline as "Byzantine complexity".

But the learned judge made clear, as I understand the decision, that the criminal would be serving much longer than five years. Indeed, Newsnight produced a judge - she did not seem to be a very senior judge to me - who pronounced that Mr Cameron had been right and Mr Blair wrong.

The lawyer-politicians have now decided to have a say, or they have been dragged into the business whether they like it or not. The Attorney General Lord Goldsmith takes the view, as far as I can make it out, that it is all very well for the Attorney to have a private argument with the judges, but that it is for him, as the chief law officer of the Crown, not for other ministers to become involved.

Lord Falconer has been saying much the same kind of thing. I am not wholly clear, by the way, that Mr Blair's former flatmate is Lord Chancellor, or Minister for Constitutional Affairs, or both. What does seem to be fairly clear is that what we shall have shortly is a new sitter on the Woolsack. But this is by the way. Lord Falconer has perhaps adopted a more emollient tone than Lord Goldsmith has chosen to take so far, but both of them are more in the business of smoothing downs, for the time being at any rate.

Until about the late 1960s, I would estimate, the judges were content not exactly to do as they were told, but, rather, to preserve their separate function. Partly this was the result of two world wars, the rise of collectivism during the last century, and the growth of the bureaucracy.

Time and again, the judges would decide regretfully that the courts were powerless and that the aggrieved party's sole remedy was through Parliament. In 99 per cent of such cases, the minister - or, more likely, the civil servant - would do the deciding, and the decision would not come anywhere near the House of Commons.

From the 1960s, the attitude would change: not that of the House, but that of the judges. From a small stream, trickling over the rocks, there would flow a swelling torrent, sometimes bringing flooding to adjoining government property. Sometimes Labour governments suffered at the hands of the judiciary, as Anthony Crosland, for instance, was frustrated in his various bits of educational reform; whereas a Conservative Home Secretary, Kenneth (later Lord) Baker was responsible for sending a politician back to Nigeria in a packing case, until a fearless judge came to the rescue.

But it was Mr Howard who then provided the greatest opportunity for home entertainment. Tory ministers took to complaining on Mr Howard's behalf; though, as with all politicians, they liked to take a certain satisfaction in their colleagues' discomfiture.

After 1997, the Labour ministers took to complaining instead. I told them, but they wouldn't listen. Mr Jack Straw, Mr David Blunkett, Mr Charles Clarke, most vociferously of all, Dr Reid, and he has been here for only five minutes: they have been more noisy than even Mr Howard ever was.

There is another, more novel element. That is Mr Blair. It was Mr Blair who brought in the Human Rights Act, assisted by Mr Straw and Lord Irvine. This measure has nothing to do with the European Union but, rather, derives from the Strasbourg Convention of 1949. It is similarly unconnected with the doctrine of judicial review. It is a recent invention of Mr Blair which, like other of his previous inventions, he now finds it convenient to jettison as soon as it suits his purposes.

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