Labour may love the judges less when its turn comes

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The Independent Online
IT IS incorrect to assume, as some ministers do, that in the past members of the judiciary never caused trouble. Lord Devlin's inquiry into the deaths at Hola Camp severely embarrassed the Conservative government of the day. Lord Denning's investigation into the Profumo affair was by no means wholly helpful to the Macmillan administration. Lord Radcliffe's committee refused to support Harold Wilson over the D-Notice affair, and had to be controverted by a whipped vote in the Commons. Lord Wilberforce's proposals for higher wages in the electricity and mining industries helped bring about the downfall of Sir Edward Heath.

The lessons were not lost on Lady Thatcher. Her period of office was distinguished by an absence of any judicial inquiries at all. It was not that there was nothing to inquire into: au contraire, as George Brown used to say when he was at the Foreign Office. Lady Thatcher took the robust view that, in a well-regulated household, the correct place for skeletons was the cupboard under the stairs. Mr John Major, by contrast, believed in handing the bodies to the laboratory for further investigation.

What members of the Government cannot do at this stage is turn round and complain, though this is precisely what they are doing. Backbenchers whose commercial activities have been impeded by Lord Nolan - and by the additional prohibition on paid advocacy imposed last Monday - should observe a similar period of silence. After all, they accepted, some even welcomed, Lord Nolan's committee when it was first set up.

Ministers are in an even weaker position than backbenchers, over both Lord Nolan's committee and Lord Justice Scott's inquiry. It was they who set up these investigations. Certainly Mr Major did. It was open to his colleagues to urge him to desist. After Lord Denning had concluded the Profumo inquiry in 1963, he advised (perhaps oddly) that no comparable investigation should ever be held again. He was a solitary judge sitting in private. Lord Justice Scott was also a solitary judge, though he was sitting in public assisted by a barrister, Miss Presiley Baxendale. He also allowed legal representation to those who made a fuss about it, such as Lord Trefgarne.

Whatever the defects of the tribunal, ministers knew of them beforehand. My own view is that, far from being hasty or unfair, Lord Justice Scott has been foolishly indulgent to those who appeared before him, sending them whole chunks of his report for comment. What did he expect? It has turned into a game of Whitehall ping-pong. With any luck we may have a result in time for the election.

Politicians are not great ones for making nice distinctions. Accordingly their sufferings under Lord Nolan, and the even more grievous blows which they expect to receive from Lord Justice Scott, are muddled in their minds with the humiliations that are heaped on their heads by the judges of the High Court. Indeed, it seems that scarcely a week passes when Mr Michael Howard is not rebuked for some misuse or abuse of his powers.

Mr Howard may well be a particularly arrogant Home Secretary. But at the same time holders of that office are peculiarly prone to find themselves at odds with the courts. One of his predecessors, Mr Kenneth Baker, was lucky not to end up in jail after disregarding an order not to deport somebody.

Ministers find themselves in trouble with the courts as often as they do because of the growth of judicial review. This has come about over the past 30 years and is the most important constitutional development of the century. Before the mid-1960s judges would say to a plaintiff who was seeking redress from a government department or some other public body:

"You have certainly been shockingly treated, and my sympathies are entirely with you. However, the court cannot put itself in the minister's place. It is he who is responsible to the House of Commons. And it is there that a remedy must be sought." In those timorous days judges used to talk - some of them may even have believed it - as if a citizen's complaint would be gravely considered by the legislature. The minister would defend his position and the House would divide on non-party lines.

There are, admittedly, some cases where the judges are still reluctant to intervene, or refuse point blank. The internal workings of both Houses of Parliament remain judge-proof. Any assertion that "national security" is involved can usually be relied upon to shut the judges up immediately, though even here there can be discerned spring shoots of judicial scepticism over ministerial claims.

But in other spheres of government traditionally regarded as solely within a department's competence, such as immigration, exclusion or expulsion, the courts have felt free to tell the minister where he is wrong. The test used to be whether a decision was so unreasonable that no reasonable minister could possibly have taken it. Today the tests are wider: whether the decision was in itself reasonable; whether reasons were given for arriving at it; whether representations were heard, or consultations made; much else besides along the same lines. There is even an instructional civil service pamphlet entitled The Judge Over Your Shoulder.

The European developments are something quite separate, though here again they tend to be lumped together with a general denunciation of the increased powers of the judiciary. But judges overrule our laws in favour of Community laws, as they occasionally do, because they are required to by the European Communities Act 1972. If the Daily Mail is unhappy about this, it should call for the repeal of the Act and our consequential removal from the European Community.

Labour supporters, and radical persons generally, have tended to welcome these changes because, for the past 16 years, it is Conservative ministers who have been on the receiving end of judicial correction. In the spring issue of Public Law, Lord Woolf and Mr Justice Laws go further. They suggest separately that the sovereignty of Parliament is not absolute. The latter writes:

"It is not a constitutional sovereignty; it does not have the status of ... a sovereign text, of the kind found in states with written constitutions. Ultimate sovereignty rests, in every civilised constitution, not with those who wield governmental power, but in the conditions under which they are permitted to do so."

And who is to do the permitting? Why, the judges of course. Who else? No wonder Lord Irvine, the prospective Labour Lord Chancellor, has delivered a lecture warning of the dangers of judicial triumphalism. But then, that very same Labour peer has promised to incorporate the European Convention on Human Rights into our law. Inevitably this will give greater discretionary power to our judges. They may turn out to be even more unpopular with Labour ministers than they are now with the Conservatives.

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