There will always be tension between politicians and judges. That is right and proper; proof, indeed, that the natural checks and balances between parliament, government and the judiciary are working. Were politicians and judges always to agree that would be grounds for suspicion. But there must be limits to that tension if the delicate balance is to be maintained. In two areas the Government seems to have overstepped the mark. The first is on its swingeing cuts to the legal aid budget which will take £350m from the annual £2bn bill.
Britain’s most senior judge, the President of the Supreme Court, Lord Neuberger, has raised concern that the rule of law might be undermined as frustration and lack of confidence in the system builds. And the cuts may not save as much money as supposed because people forced to represent themselves may take far more court-time.
The Government should take heed. It is right that what is one of the most expensive legal aid systems in the world should not be exempt from cuts. Divorce is an obvious example of where court should be the last, not the first, resort. But a recession is the wrong time for poor families to lose their access to a lawyer in employment, welfare and some debt and housing issues.
What ministers should not do – the other way in which they have overstepped the mark – is attack the judges, which is what the Home Secretary, Theresa May, did when she accused judges of subverting democracy and making Britain more dangerous by misinterpreting rules on deporting foreign offenders. She and the Justice Secretary, Chris Grayling, have also attacked human rights law and the European Court of Human Rights in particular.
If politicians do not like judges’ decisions they have a right of appeal; if that fails, they can change the law. Public attacks on the judiciary risk undermining public confidence in the law. Ministers should resist the temptation to score easy political points in this way and exercise a little more temperance in these matters.