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

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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.

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