Why the Chief Justice will also say No, Minister

Lord Taylor refused a cosy relationship between government and the judiciary. His successor will not revive it, argues Jeffrey Jowell

Share
Related Topics
It used to be that the prime task of a Chief Justice was to strike fear in the breast of the criminal classes. The chief could be confidently relied on not to be soft on sentencing and never to argue with the government - at least not in public.

The reign of Lord Taylor who, sadly, resigned as Chief Justice due to ill health last Friday, was marked by his willingness to challenge the wisdom of government ministers. Will his successor be similarly inclined?

One of Lord Taylor's predecessors in the late 1950s, Lord Parker of Waddington, proclaimed that judges should be the "handmaidens of the administration", a statement that the Home Secretary would no doubt applaud. Lord Taylor would not; witness his reluctance to accept the Home Secretary's right to compel judges to impose sentences of a certain length upon offenders, irrespective of the particular facts of a case. In his Dimbleby Lecture, delivered shortly after he was appointed, he put his weight firmly behind those wanting to see the European Convention of Human Rights incorporated in our law.

Have today's judges become too "political"? Judicial review has been the fastest growing area of the common law. Even where ministers are allocated broad discretionary powers by Parliament - to act as they "think fit", or to introduce legislation in their own time, the courts have held that this broad discretion must be exercised in a way that accords with the law's purpose; that the procedures of implementation must be fair, and that the decisions reached must not be unreasonable or irrational.

Chief Justice Parker would not have approved. Nor do some modern critics, who view the growth of judicial review as the illegitimate transfer of power from elected representatives to unelected judges.

Which model is the correct one for new Chief Justice? The old-style judge, who could be relied upon to support the views of the powers that be, or the modern judge, who insists that the implementation of legislation follow a set of principles of good and fair administration?

The answer to that question lies in the heart of the unwritten, and therefore evolving, British constitution. Judges apply the accepted notions of constitutional propriety of their own times. In the time of Lord Parker, the prime constitutional principle was parliamentary sovereignty. Democracy required that the government's will should be followed to the letter, and that administrative discretion be unconstrained, irrespective of any unfair consequences on the individual.

The present generation of judges are applying a different concept of democracy, one that requires government decisions to be sanctioned not simply by the majority of the voters at the time of elections. Democracy goes deeper than that. It also requires government to be willing to listen to those affected by official decisions taken between elections. And it requires officials to treat all citizens fairly and equally.

This does not mean that the present generation of judges are simply making decisions based upon their own ideological preferences. The discipline of proper judicial reasoning does not easily permit that. Judges are not equipped to interfere in matters of policy or the allocation of social resources.

The picture presented by the critics of modern judicial review - that ideological judges are upsetting the workings of effective governance - is therefore incorrect, not least because they choose to ignore the fact that, in judicial review cases, judges still come down on the side of government more often than on the side of the applicant challenging the official decision.

Take Lord Taylor himself. His decisions against government have been widely publicised. They include his groundbreaking assertions that even the prerogative power, formerly unchallengable, could be judicially reviewed (a case involving the refusal of a passport). And in a case involving telephone-tapping, he made it clear that he would not shirk from contradicting the Home Office even where it raised the plea of "national security" (a plea formerly enough to induce deference in even the most independent judge).

But Lord Taylor refused to strike down the Government's regulations under which a number of arms dealers were prosecuted for trading with Iraq. That case received little publicity. Had it gone the other way, the Government may have had even more difficulty in surviving the publication of the Scott report.

While by no means opposing ministers at every turn, Lord Taylor embodied the modern attitude to judicial review in his task as Chief Justice. He showed this not only in his judgments, but in his attitude towards a greater openness and accountability of his own office - he was willing to meet the press and appear on television. His commitment to equality was expressed through his powerful statements in favour of the elimination of racial and sex discrimination in the legal profession, in his willingness to abandon his wig and his injunction to fellow judges to be in touch with the public.

His opposition to minimum sentences to be imposed by fiat of the Home Secretary again raised a profound question of principle: whether justice can be imposed on the basis of a political formula, or whether it requires each individual case to be judged on its particular merits, so that the punishment might fit the particular crime.

The next Chief Justice may not have Lord Taylor's considerable qualities of character, nor his gifts of lucid prose. He or she is, however, unlikely to return to the days of unquestioned judicial deference to political authority. Thanks in no small part to Lord Taylor, our evolving constitution has moved well beyond that stage.

Jeffrey Jowell QC is professor of public law and vice provost at University College London and a barrister.

React Now

iJobs Job Widget
iJobs General

Graduate Java / C++ Developer

£40000 - £50000 per annum: Deerfoot IT Resources Limited: Graduate Java / C++ ...

Programme Manager - Business Support Transformation, 1 year contract

£550 Per Day: Clearwater People Solutions Ltd: Our client based in Walthamstow...

ERP Business/ Implementation Analyst

£40000 - £45000 per annum + competitive: Progressive Recruitment: This is an e...

Demandware Developer

£45000 - £55000 per annum + competitive: Progressive Recruitment: My Client is...

Day In a Page

Read Next
 

The daily catch-up: what if Hillary sticks, drowning sorrows and open sesame

John Rentoul
 

i Deputy Editor's Letter:

Independent Voices, Indy Voices Rhodri Jones
Super Mario crushes the Messi dream as Germany win the 2014 World Cup in Brazil

Super Mario crushes the Messi dream

Germany win the 2014 World Cup in Brazil
Saharan remains may be evidence of the first race war, 13,000 years ago

The first race war, 13,000 years ago?

Saharan remains may be evidence of oldest large-scale armed conflict
Scientists find early warning system for Alzheimer’s

Scientists find early warning system for Alzheimer’s

Researchers hope eye tests can spot ‘biomarkers’ of the disease
Sex, controversy and schoolgirl schtick

Meet Japan's AKB48

Pop, sex and schoolgirl schtick make for controversial success
In pictures: Breathtaking results of this weekend's 'supermoon'

Weekend's 'supermoon' in pictures

The moon appeared bigger and brighter at the weekend
Iraq crisis: How Saudi Arabia helped Isis take over the north of the country

How Saudi Arabia helped Isis take over northern Iraq

A speech by an ex-MI6 boss hints at a plan going back over a decade. In some areas, being Shia is akin to being a Jew in Nazi Germany, says Patrick Cockburn
The evolution of Andy Serkis: First Gollum, then King Kong - now the actor is swinging through the trees in Dawn of the Planet of the Apes

The evolution of Andy Serkis

First Gollum, then King Kong - now the actor is swinging through the trees in Dawn of the Planet of the Apes
You thought 'Benefits Street' was controversial: Follow-up documentary 'Immigrant Street' has got locals worried

You thought 'Benefits Street' was controversial...

Follow-up documentary 'Immigrant Street' has got locals worried
Refugee children from Central America let down by Washington's high ideals

Refugee children let down by Washington's high ideals

Democrats and Republicans refuse to set aside their differences to cope with the influx of desperate Central Americas, says Rupert Cornwell
Children's books are too white, says Laureate

Children's books are too white, says Laureate

Malorie Blackman appeals for a better ethnic mix of authors and characters and the illustrator Quentin Blake comes to the rescue
Blackest is the new black: Scientists have developed a material so dark that you can't see it...

Blackest is the new black

Scientists have developed a material so dark that you can't see it...
Matthew Barzun: America's diplomatic dude

Matthew Barzun: America's diplomatic dude

The US Ambassador to London holds 'jeans and beer' gigs at his official residence – it's all part of the job, he tells Chris Green
Meet the Quantified Selfers: From heart rates to happiness, there is little this fast-growing, self-tracking community won't monitor

Meet the 'Quantified Selfers'

From heart rates to happiness, there is little this fast-growing, self-tracking community won't monitor
Madani Younis: Five-star reviews are just the opening act for British theatre's first non-white artistic director

Five-star reviews are just the opening act for British theatre's first non-white artistic director

Madani Younis wants the neighbourhood to follow his work as closely as his audiences do
Mrs Brown and her boys: are they having a laugh?

Mrs Brown and her boys: are they having a laugh?

When it comes to national stereotyping, the Irish – among others – know it can pay to play up to outsiders' expectations, says DJ Taylor