Leading article: Politicians, judges, and the need for free speech

Share

Today another significant voice enters the war of words between the Government and the judiciary. The comments of the High Court judge, Peter Smith, in The Independent, echo the recent warnings of the Lord Chief Justice and the secretary of the Council of Circuit Judges that the Government's increasing willingness to attack judicial verdicts is damaging public confidence in the criminal justice system.

It is not difficult to decide which side to sympathise with in this row. The recent outbursts by Tony Blair and his ministers have been profoundly hypocritical. Questioned before the Commons Liaison Committee yesterday, the Prime Minister repeated his threat to introduce new legislation to push through his anti-terrorism programme in response to the rejection of control orders on terror suspects by a High Court judge last week. But he ignored the fact that the judge in question was merely exercising the responsibilities thrust upon him by the Human Rights Act, a piece of legislation that Mr Blair introduced eight years ago. Similarly, John Reid's attack on a "lenient" sentence handed down to a convicted paedophile last month was made in apparent ignorance of the fact that the judge was following the sentencing guidelines that the Government has laid down. If Tony Blair truly believes that "our legal culture is behind the times", as he told the committee yesterday, he is as much to blame as anyone else.

When it comes to terrorism, Mr Blair's frustration stems from the fact that the judiciary has more regard for civil liberties and the rule of law than he does. On crime and sentencing, the Government has been hoist by its own petard. It has raised public expectations to an unreasonable level through its populist rhetoric. And it is paying the penalty for pushing through ill thought-through legislation. This row is a cynical attempt by the Government - with the support of the sensationalist press - to make judges scapegoats for its own shortcomings. Yet, for all the political posturing in this spat between ministers and judges, it cannot be denied that it has implications for how our criminal justice system will function in future. Mr Justice Smith's decision to intervene in this row is more evidence that the convention that sitting judges should keep quiet outside the courtroom is breaking down. If judges do become more outspoken, their position in our constitutional arrangements will inevitably change.

Of course, their role has been changing in recent years anyway. Thanks to the Human Rights Act, judges have been forced to make a number of judgments that contain a political dimension, ranging from the treatment of terrorist suspects to the rights of asylum seekers. This expanded role for the judiciary is something we should welcome. Judges are becoming a greater influence in checking our elected rulers. As the executive grows increasingly powerful and careless with our civil liberties this can only be a good thing. And now that the judiciary is becoming more outspoken too, we are witnessing the creation of a more open and accountable system.

So let politicians criticise individual judgments if they must (although they should be warned that this is usually a sign of weakness). And let judges defend their position robustly. The real weakness of the present arrangements is imbalance. Ministers can take potshots at judges, but the judiciary is powerless to return fire. Judges have an increasingly significant role, but are considerably less accountable than ministers.

The British constitution has always developed organically. Rather than representing fixed arrangements, it is growing in new directions. It should be encouraged to grow in a direction that will safeguard the independence of the judiciary and the accountability of the criminal justice system. Let us have more free speech all round.

React Now

Latest stories from i100
iJobs Job Widget
iJobs General

Head of Marketing and Communications - London - up to £80,000

£70000 - £80000 per annum: Ashdown Group: Group Head of Marketing and Communic...

Nursery Nurse

Negotiable: Randstad Education Manchester: Level 3 Nursery Nurse required for ...

Nursery Nurse

Negotiable: Randstad Education Manchester: L3 Nursery Nurses urgently required...

SEN Teaching Assistant

Negotiable: Randstad Education Manchester: We have a number of schools based S...

Day In a Page

Read Next
Hilary Mantel in 2003 - years before she released a short story, in which she fantasised about the death of Margaret Thatcher  

In what universe is Hilary Mantel's imaginary assassination of Margret Thatcher worthy of police investigation?

Matthew Norman
Noddy Holder must be glad he wrote 'Merry Xmas Everybody' as he'll earn £800,000 this year from royalties.  

Noddy Holder: A true rock ’n’ roll hero, and a role model for sensible people everywhere

Rosie Millard
Scottish referendum: The Yes vote was the love that dared speak its name, but it was not to be

Despite the result, this is the end of the status quo

Boyd Tonkin on the fall-out from the Scottish referendum
Manolo Blahnik: The high priest of heels talks flats, Englishness, and why he loves Mary Beard

Manolo Blahnik: Flats, Englishness, and Mary Beard

The shoe designer who has been dubbed 'the patron saint of the stiletto'
The Beatles biographer reveals exclusive original manuscripts of some of the best pop songs ever written

Scrambled eggs and LSD

Behind The Beatles' lyrics - thanks to Hunter Davis's original manuscript copies
'Normcore' fashion: Blending in is the new standing out in latest catwalk non-trend

'Normcore': Blending in is the new standing out

Just when fashion was in grave danger of running out of trends, it only went and invented the non-trend. Rebecca Gonsalves investigates
Dance’s new leading ladies fight back: How female vocalists are now writing their own hits

New leading ladies of dance fight back

How female vocalists are now writing their own hits
Mystery of the Ground Zero wedding photo

A shot in the dark

Mystery of the wedding photo from Ground Zero
His life, the universe and everything

His life, the universe and everything

New biography sheds light on comic genius of Douglas Adams
Save us from small screen superheroes

Save us from small screen superheroes

Shows like Agents of S.H.I.E.L.D are little more than marketing tools
Reach for the skies

Reach for the skies

From pools to football pitches, rooftop living is looking up
These are the 12 best hotel spas in the UK

12 best hotel spas in the UK

Some hotels go all out on facilities; others stand out for the sheer quality of treatments
These Iranian-controlled Shia militias used to specialise in killing American soldiers. Now they are fighting Isis, backed up by US airstrikes

Widespread fear of Isis is producing strange bedfellows

Iranian-controlled Shia militias that used to kill American soldiers are now fighting Isis, helped by US airstrikes
Topshop goes part Athena poster, part last spring Prada

Topshop goes part Athena poster, part last spring Prada

Shoppers don't come to Topshop for the unique
How to make a Lego masterpiece

How to make a Lego masterpiece

Toy breaks out of the nursery and heads for the gallery
Meet the ‘Endies’ – city dwellers who are too poor to have fun

Meet the ‘Endies’ – city dwellers who are too poor to have fun

Urbanites are cursed with an acronym pointing to Employed but No Disposable Income or Savings
Paisley’s decision to make peace with IRA enemies might remind the Arabs of Sadat

Ian Paisley’s decision to make peace with his IRA enemies

His Save Ulster from Sodomy campaign would surely have been supported by many a Sunni imam