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

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The Independent Online

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.

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