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Conor Gearty: On Fantasy Island: British politics, English judges and the European Convention on Human Rights

conorMy first encounter with the fantasies that underpin English public law came in the 1980s. I had just starting teaching constitutional law and was taking my first year students through Dicey: the independent rule of law; the availability of remedies to all, without fear or favour; the common law’s marvellous protection of civil liberties; how great we were, how terrible the continent; and all the rest of it. Outside the classroom, striking miners were being routinely beaten up by the police, their picketing disrupted by road blocks, their liberty eroded by mass bail conditions. The Campaign for Nuclear Disarmament was having its marches banned and its protests inhibited by ‘no-go’ areas arbitrarily erected by the police around American bases into which it had been decided to move a new generation of nuclear weapons. Some of my students were even beaten up themselves, on a march against education cuts in London – much to their surprise given what I was teaching them.

Far from confronting any of this from the perspective of principle, the courts were happy to act as a benign legitimating force, their various rulings invariably serving to throw the necessary constitutional camouflage over successive exercises of raw state violence. Eventually the judges overreached themselves even by the standards of the day: their absurd determination to prevent publication of a book (Spycatcher, by Peter Wright) containing serious allegations of criminality against the security services fell apart thanks partly to being published in the US under the protection of the first amendment but mainly to the determination of a European Court of Human Rights to take freedom of expression more seriously than had the supposed guardians of liberty on the Strand. (More on this court later, of course.) The determined commitment of a succession of senior judges to keep Irish prisoners in jail for serious terrorist offences long after it was obvious to all that the men (and in some cases children) involved had been victims of serious miscarriages of justice eventually brought the reckless reactionary partisanship of the senior judiciary to center stage where it could finally be seen and understood by all: the true perspective of the Dennings, the Diplocks, the Lanes, the Bridges, the Donaldsons was eventually exposed for all to see. By the early nineties, the Dicey fantasy I had found on arrival in England was in ruins, believed by almost no one, exposed as a construct founded on deceit.

It is invariably easier to expose the iniquities of the past than it is to address the problems of today. The judiciary has remade itself in a way that has been undoubtedly successful; they are certainly not as they were in the 1980s: aloof, national service men, bound by the Kilmuir rules to an extra-judicial omerta that removed them from all public discourse. The first generation of judges after the catastrophes of the late 1980s responsible for this make-over took to human rights as their penance for past sins and when they got the Human Rights Act (for which many of them had quietly campaigned) they went about interpreting it in a way that has been beneficial. But these men (and a very few women) are now largely going or gone, being replaced by a newer generation of senior figures – even more male than in the immediate past – whose pride in what they do seems untainted by any awareness of past wrong. And in their excitement at their success, not only past wrongs are being forgotten but truths are being constructed in a way that bears striking resemblance to that past. This revival of fantasy is now reacting with the current political atmosphere in a way that threatens to produce a poisonous cocktail that could destroy modern England. I do not believe I exaggerate.

So who are these judges who are at a political front-line many of them probably don’t know exists? We can learn far more than we used to of how they see the world. There are many speeches and public lectures: the Kilmuir rules are long forgotten. The habits of certainty and decisiveness so essential to adjudication are not easily laid aside at the lectern when judges approach it. Perspectives are laid out not as tentative scholarly arguments so much as authoritative findings of fact.   As President of the Supreme Court, Lord Neuberger is understandably one of the more prolific speech-makers. His talk at the Supreme Court of Victoria in Melbourne on 8 August this year introduces us to our first contemporary fantasy: the myth of Whiggish inexorability.   We learn from Lord Neuberger that ‘[t]he history of Human Rights and the United Kingdom in the last 100 years can be divided into several periods’: the ‘dark ages pre 1951 when Europe became ‘sharply aware of the need for [a] strong, clear and codified set of human rights’ when we in the UK did not; the ‘middle ages’ between 1951 and 1966 (when individuals were first allowed to take the UK to the European Court of Human Rights); the ‘years of transition’ between 1966 and implementation of the Human Rights Act 2000 when ‘human rights started to leak into the judicial cerebellum’ and – inevitably – ‘the age of enlightenment’ of today:

There is nothing here about the European choice directly after the war being governed by politics and the fear of the Left that has been so convincingly demonstrated in recent scholarship: the work of Marco Duranti in particular. There is no nod towards the decay of the judges’ standing in the 1980s in the UK that precipitated the move to rights – on Neuberger’s account human rights just sort of leaked into judicial grey matter. And like all such triumphalist accounts of the past, the present is treated as a destination (we are in the ‘still early days’ in our ‘age of enlightenment’), rather than just a brief moment on a journey to somewhere else.

Lord Neuberger is also an exemplar of our second fantasy, that of the civil libertarian common law. The 1980s (and indeed all earlier decades) have been forgotten: ‘there is no doubt that the common law was in many ways the origin and promoter of individual rights’ its only problem being (and the reason for the turn to rights) that ‘it developed such rights in a somewhat haphazard and leisurely way.’ Well that is one way to describe it – the partisanship of the common law for property and contract rights over gender and racial equality; an hostility to trade unions and the Labour party so severe that neither could have survived without legislation directly overturning judicial malevolence; the common law’s service as a base for the serial abuses of liberty with which I began this lecture. In his recent, beautifully written Hamlyn lectures, the celebrated Court of Appeal judge Lord Justice John Laws (The Common Law Constitution ) sings a hymn of praise to the old common law, arguing that it is the unifying principle of the constitution and that ‘its distinctive method has endowed the British State with profoundly beneficial effects.’ The recently retired Lord Chief Justice Lord Igor Judge took a not dissimilar line in a recent lecture at University College London where he defended the courts from executive interference against a background of unquestioned acceptance of the fact of the ‘independence of judicial decision making’ as ‘an integral structure of the constitution’.

Now it is only one step from this position to say that actually the common law is so wonderful that it ought to have superiority over Parliament itself, a position once held by the judges in eras gone by of course, but which one might have thought had been laid to rest by democratic revolution. In fact that is not the case. At least some of the judges have allowed the enthusiasm of certain academic scholars for such a possibility to lead them to what Lord Neuberger in his Melbourne speech called ‘the interesting point’ of whether the courts can in fact overturn Parliament itself. A mini-spate of cases in the Supreme Court have allowed the idea to grow without the unanimous disavowal that would surely have been its fate only a little while ago. On any current account the obstacles against such a judicial overriding of parliament would need to be very high: some draconian flouting of the rule of law or what Lord Neuberger called (and even then only possibly) ‘exceptional circumstances’. Perhaps these are what Lord Carswell in Jackson v Attorney General [2005] UKHL 56 referred to (albeit in the context of a law passed under the Parliament Act) as legislative acts amounting to ‘a fundamental disturbance of the building blocks of the constitution’ (at para 178).

The Human Rights Act currently controls judicial capacity here by its well-known reaffirmation of the principle of Parliamentary sovereignty in sections 3(2), 4(6) and 6(2) – well-known that is to everybody except senior members of the current Government who seem to think that the Act empowers the courts to strike down primary legislation – this fantasy of judicial supremacism in human rights law is a delusion seemingly restricted to the upper reaches of the Conservative party, guided by advisers no doubt to invent a problem in order better to able to curry favour with the electorate by dealing robustly with it. The prime minister has had many opportunities over the past few years to demonstrate how important it is to introduce law into the study of Oxford’s PPE degree – the lack of awareness of the contempt of court demonstrated by his intervention in the trial of the Saatchi PAs and the recent, forthright denial that EU legal obligations apply to British money come to mind. But the nadir was surely his apparent (contrived? genuine?) belief that in implementing a declaration of incompatibility issued in respect of the sex abuse register (so as to afford a modicum of due process to those whose lives had been hugely adversely affected by being on it) he was being forced by the courts to act. The whole point of the Human Rights Act – as my colleague professorial research fellow Francesca Klug has pointed out on occasions too numerous to count – is that declarations of incompatibility do not have to be followed. Lady Hale – who was one of the judges in the case put it with characteristically understated precision in commenting on this incident: ‘Curiously, when introducing the order in Parliament, the Prime Minister was highly critical of our decision, but made no mention of the fact that the Government could have chosen to do nothing about it’

Repeal of the Human Rights Act – a policy to which the Conservative party is now committed – might well produce exactly that judicial supremacism about which the prime minister complains. Most really strong attacks on the rule of law and/or ‘the building blocks’ of the constitution would inevitably also entail a direct undermining of at least one and possible more Convention rights – the wholesale abolition of legal aid for example would breach the implied right of access to the courts in Article 6, under the Golder and Airey principle. The expulsion of asylum-seekers and others to face torture abroad would engage article 3 and so on. As things stand the judges could surely do nothing about such attacks however fundamental they believed them to be because of the explicit protection afforded parliament when it comes to legislation violating human rights – sections 3, 4 and 6 again. But take that protection away, and the common law solicitude for human rights that would replace it would not necessarily be so beholden to parliament. The primary laws themselves might become vulnerable. This would certainly be very odd: action to end something that could never happen would only serve to bring it about. The fiction of judicial supremacy would be turned into fact by efforts made to deal with it. But abolishing something that isn’t there creates it: in the social as well as earth sciences two negatives do indeed make a positive. Maybe the Tories genuinely don’t care about this – in modern politics the spin is the thing: fantasy rules.

It might seem a little odd to be talking about the British judges in this way, since they have not been at all in the firing line in recent years. The executive and the popular press appear to have a finite capacity for populist indignation against courts and since the decision in the prisoner-voting case of Hirst v United Kingdom in 2005 ((2006) 42 EHRR 41), most of this has been heading out of town, away from the Royal Courts of Justice and towards Strasbourg. True there have been past periods of noisy British scepticism towards the European Court of Human Rights (one thinks in particular of Ireland v UK (1978) 2 EHRR 25 and the Gibraltar decision of McCann v United Kingdom (1996) 21 EHRR 97 holding the UK responsible for the killing of an IRA active service unit) but nothing has been as sustained or as vehement as the head of steam that has been built up over this – it has to be said – relatively minor question of prisoner voting. True the litigant was not ideal from a human rights point of view: an axe-wielding killer celebrating his win with champagne as he pours Youtube abuse on the authorities was something of a low point even in the world of unsavory human rights defendants: And it was unlucky of Strasbourg that they were left holding this particular package when the music stopped – the local courts having deftly avoided trouble by refusing to find any human rights violation when the matter came before them. How the issue has escalated as it has must be a matter for sociologists and political scientists. One of the more remarkable features of the strange times we live in is that the case has produced a myth to which it is own refutation. The myth is that of Strasbourg supremacism: what the European Court of Human Rights says goes. Or as Lord Rodger of Earlsferry famously put it in Secretary of State for the Home Department v AF (No 3) [2010] 2 AC 269 at para 98, ‘Argentoratum locutum: iudicium finitum – Strasbourg has spoken, the case is closed’. But if this were true, prisoners would now be voting. Not only are they not voting; the Supreme Court has itself, in R (Chester) v Secretary of State for Justice; McGeoch (AP) v Lord President of Council [2013] UKSC 67, specifically refused even to issue a declaration of incompatibility to put pressure on the government that they should allow such votes. The obligations under the Council of Europe’s Convention on Human Rights are international not domestic: our legal system does not require their implementation, immediately or indeed ever (see article 46). True adherence to international law is an important matter, one that has many repercussions – the UK might find it harder to tell other countries what to do with regard to human rights; it might find itself in trouble at the Council of Europe; the UK judge at Strasbourg may end up lunching alone; and so on. Importantly for present purposes none of these effects is legal, or more precisely legal in the domestic sense.

The extraordinary way in which our public culture has been mustered to savage the Strasbourg court is one of the dismal wonders of our politically constricted age. That court has rescued the English common law from itself on far more occasions that it has made itself an unnecessary nuisance: the maltreatment of gays purely on account of their sexual orientation (Dudgeon v United Kingdom (1981) 4 EHRR 149); corporal punishment in schools (Campbell and Cosans v United Kingdom [1982] ECHR 1); the inhuman and degrading treatment of internees (Ireland v United Kingdom (1978) 2 EHRR 25); the deliberate shooting of suspected terrorists (McCann v United Kingdom (1996) 21 EHRR 97); draconian contempt laws that prevented campaigning newspapers from exposing wrong (Sunday Times v United Kingdom (1979) 2 EHRR 245); long periods of detention without trial Brogan v United Kingdom (1988) 11 EHRR 117); cruel invasions of privacy (Kaye v Andrew Robertson and Sports Newspapers Ltd [1991] FSR 62) – all unnoticed by the common law’s supposed celebration of individual rights, not leaking into ‘the judicial cerebellum’ so much as being rammed into it by Continental judges in the teeth of domestic opposition. Often this opposition has been led by politicians of course: the annoyance at having executive discretion constrained combines with awareness that the Strasbourg court will not answer back to produce a temptation to play to the gallery that is rarely resisted. But at least politicians have the excuse that they need votes and therefore have to please the Mail, potential UKIP voters and others who for various reasons are disinclined to look honestly at the facts. What excuse do British judges and former judges have for their recent attacks on the Court?

There is a long if not venerable tradition here of British mistrust of what Strasbourg does. The distinguished lawyer F A Mann once gave revealing expression to it in a note in the Law Quarterly Review inveighing against the majority judges in a leading Strasbourg case not on the basis of what they said but on account of the puny countries from which they came: (1979) 95 Law Quarterly Review 348. In the politer 1990s as the chastened judges rebuilt their reputation, such modest recoiling from Strasbourg’s incoherence as there was produced only occasionally expressed judicial puzzlement and a range of tentatively-articulated extra-judicial speeches in favour of incorporating the Convention into UK law and so giving British judges the first say over what it meant, a good example being the late Lord Bingham’s, ‘The European Convention on Human Rights: time to incorporate’ (1993) 109 Law Quarterly Review 390.

Now though we seemed to have entered a new era of vulgarity. Perhaps it was Lord Hoffmann who started this with his famous speech in 2009 to the judicial studies board on the ‘Universality of Human Rights in which he paraded a startlingly ridiculous set of remarks from a dissenting judge on the Strasbourg bench as though they were typical of agreed interventions by a unanimous grand chamber. Lord Judge’s recent interview in Counsel magazine was sufficiently forthright to receive the doubtful accolade of the following Daily Mail headline ‘HUMAN RIGHTS COURT “IS A THREAT TO DEMOCRACY”: EX-LORD CHIEF JUSTICE BLASTS UNELECTED STRASBOURG JUDGES’ There is another fantasy here, that of the neutral judge, the convention that he or she stands above the eddies and flows of the political. No doubt Lord Judge believes that he is making an apolitical point when he writes of the supremacy of parliament and of the need for judges not to get involved in political questions. But saying as much these days is in itself a political intervention. Lord Sumption manoeuvred himself into exactly the same position in his F A Mann lecture lecture on judicial and political decision-making in 2011, shortly before he took up his position as a supreme court judge. His excoriation of the tendency of the Strasbourg court to develop its jurisprudence across all 47 member states in a way which conflicted ‘with some very basic principles on which human societies are organised’ grew out of his belief that the Strasbourg jurisprudence had got out of control, with its ‘large number of derivative sub-principles and rules, addressing the internal arrangements of contracting states in great detail’. But calling for the court to pull back is itself a political intervention. The Conservatives echo this critique when they call for the Strasbourg Court to disown its jurisprudence on the evolving meaning to be accorded rights in the Convention. In doing this they are mimicking the American emphasis on original intent dreamed up by Reagan’s attorney general Ed Meese and supported by the anti-federalists and Christian right as a way of providing scholarly cover for the forced retreat of the US federal government on the one hand and the overturning of the celebrated abortion decision Roe v Wade on the other (In seeming through their arguments to eschew the world of politics both Lord Judge and Lord Sumption are in fact entering that world, their conservative position disguised as neutral by the judicial garb one has just taken off and the other was just about to out on.

A subset of the fantasy of Strasbourg supremacism, encouraged by Lord Rodgers’s ill-advised plunge into Latin, is that Strasbourg’s cases are required to be followed by the British courts.   As even first year law students know, this is simply not the case. The Human Rights Act could not have been clearer in section 2 when it required of the judicial authorities interpreting the Act that they take into account such jurisprudence – no further requirement to (in the English common law sense) ‘follow’ such decisions appears in the Act. Now it is perfectly true that the courts here themselves have tended to support Strasbourg decisions (Lord Bingham’s ‘mirror principle’ in R (Ullah) v Special Adjudicator [2004] UKHL 26, [2004] 2 AC 323) on the sensible basis that it is wise to keep in tune with a body to which your own litigants (or at least the non-governmental ones) can appeal. Never invariable, that mirror principle has loosened up of late, with the courts treating the Strasbourg menu as if not quite a la carte then at least one from which there is a decent choice, including if needs must a house special grown entirely from British produce: R v Horncastle [2009] UKSC 14, [2010] 2 WLR 47. Strasbourg has on the whole gone along with this, conceding some positions to help keep the peace (as in Al-Khawaja and Tahery v United Kingdom (2012) 54 EHRR 23 (GC)) revisiting its case-law in light of guidance from their lordships, (Animal Defenders v United Kingdom (2013) 57 EHRR 21 (GC)) and even recanting when it has been caught out in foolishness (Z v United Kingdom (2002) 34 EHRR 97). This is what all informed observers call ‘dialogue’ – it is not dictatorship. The Conservative Party’s recent peculiar set of proposals, already referred to, for ‘changing Britain’s human rights law’ was full of invective against the Strasbourg court and this led its authors to conclude that the Human Rights Act needed to go (not Strasbourg, oddly). But why the Human Rights Act? The crime is that all this Strasbourg rubbish (‘problematic jurisprudence’) is getting into our law (‘often being applied’) and this has to stop. But then a bit later the paper volunteers that Strasbourg is ‘creating legal precedent for the UK’. So which is it ‘often’ or ‘always’? The paper appears to believe it is both, simultaneously. If section 2 did not already exist it would be produced as the solution to a problem – Strasbourg supremacy – that is simply not there, or at least not there in our domestic human rights law.

I end with the largest fantasy of all, the fantasy that drives all the others on this little island, or accurately a bit of this little island, and which is the only reason I can find for what would otherwise be incomprehensible. Lord Neuberger has it spot on when he told a Cambridge audience in February this year that ‘[t]he loss of the Empire and the loss of world premier league status has inevitably caused problems to the national psyche’ and that it is therefore understandable that ‘a transformation from a global pre-eminent status to just one of many EU or Council members requires an almost super-human attitudinal adjustment’ It is not one that some have been able to make, especially those, it seems, whose entire education has never required departure from the quads, cloisters and colleges of past glory or any kind of mustering in with that England known to the other ninety per cent. The Conservative part of the government increasingly gives the impression that the Act of Union with Scotland was the beginning of an heroic English age of imperialism to which we can now return, the people cheering from the sidelines as they did when Disraeli paraded Victoria as Empress of India.   Down that route is a provincial backwater peopled by well-educated fools, shouting loudly. No judge, past or present, should be encouraging this fantasy of English exceptionalism, especially now as it gathers such populist steam.

 

Conor Gearty is Director of the Institute of Public Affairs and Professor of Human Rights Law LSE. This is the text of the 36th Corbishley Lecture, held at LSE.

 

Suggested citation: C. Gearty ‘On Fantasy Island: British politics, English judges and the European Convention on Human Rights’ UK Const. L. Blog (13th November 2014) (available at http://ukconstitutionallaw.org)

9 comments on “Conor Gearty: On Fantasy Island: British politics, English judges and the European Convention on Human Rights

  1. Keith Crossland
    November 13, 2014

    I was recently involved in a case in which the judges ignored the Civil Procedure Rules and the evidence, at a strike out hearing where the level of evidence required to defeat a strike out is minimal. The question before the courts was did someone “A” participate in the libel. I had plenty of evidence, including the defence stating that A went to get advice from the author of the libel “B” and B reported what A had told her to C. And, B knew nothing about me, and therefore it could be inferred that the information in the libel came from A who did know me. In the face of this and other excellent evidence the judge set the bar for me to overcome to a level that was not dissimilar to beyond reasonable doubt. He said that the author of the publication complained of had to name A in that publication. That judge knowingly broke the rule of law. On appeal, the judges held that the judge was correct. I complained to the JCIO, but they said my complaint was inadmissible. There should be oversight of the judiciary by an independent body, and not by the judges themselves.

  2. Keith Crossland
    November 13, 2014

    Our Constitution: Parliamentary oversight of the judiciary?

    This is a paper asking the question: who oversees the judiciary in a constitution that is meant to consist of checks and balances between the various branches that constitution?

    Eight hundred years ago, the King would send his judges into his realm to dispense justice on his behalf. However, by the late 1600’s it was recognised that the judges should be independent of the King’s influence, after all the people had recently cut off a King’s head, and another had fled the country, so they had little trust in their King, and that he would not meddle in the outcome of cases coming before the courts. Therefore, by the Act of Settlement 1701, the judges were protected from this influence; they became, independent of the influence of the Crown.

    And so, with the passing of the Act, they could not be undermined in the course of their duties as a judge. But, they had great power, able to lock anyone up for contempt should they try; and are able to deprive people of their liberty and property in the course of being judicial.

    MP Peter Hain’s experience is perhaps the most recent high profile case of this power, and its abuse, because he dared be a critical of a judge, thereby allegedly undermining the standing of the court. The possibility of his trial, made some 50 fellow MP’s sit up and take note of this judicial heavy hand, stepping in to sign a petition, which brought sufficient constitutional pressure to bear, bringing it to an end, and leading to the repeal of the law, Scandalising the Court.
    But, had that happened to a mere mortal, who could not rely on the support of 50 MP’s, this abuse of power would have almost certainly gone unnoticed, and hardly anyone would have cared. But, wasn’t Peter Hain’s experience the type of case in which Parliament should have taken a view and formed a Select Committee to monitor our judges’ use and possible misuse of their power? After all, if it could happen to an MP, who else was possibly being abused by the judges, and how often? Or, is it only when judges attack our MP’s does Parliament take note? Once the crisis had passed, should our MP’s have settled back, ‘believing’ that everything with the judiciary was, again, perfect?

    politics.co.uk states, “The doctrine of the “separation of powers” has traditionally proposed that the state is divided into the separate and distinct arms of Executive, Legislature and Judiciary, whereby each arm acts as a “check and balance” on the others.”

    It was recognised in 1701 that there had to be a “check and balance” on all the pillars of the constitution, each checking the other to ensure oversight on the power each branch wielded. Armed with the knowledge that power corrupts, Parliament in the days of the Act of Settlement did something more than just ensure that the judges were independent. It introduced a check on the power of the judges, because, it must have been recognised by Parliament that it was furnishing the judges with a power not dissimilar to the Kingly tyranny it was destroying.

    Parliament in the 1700’s required that a judge held his judicial office subject to, Quamdiu se bene gesserint, as long as he shall behave himself well, or, more often quoted today as, being of good conduct, and if he was not inclined to behave appropriately, he could be removed by a vote of both Houses. This was a deliberate insertion into the Act to stop the possibility of judicial tyranny or corruption by any means the judiciary might be incline to try.

    The people of the 17th and 18th centuries recognised that power corrupts. Our institutions over the centuries have become more democratic, with more checks and balances and less irreverence. Perhaps the best example is that the King has become less powerful, with the Crown’s powers transferred to the judges and to the Executive led by the Prime Minister.

    But, Prime Ministers cannot act in their office as they please. They can be removed by several methods, including, by the people in a general election; by a vote of no confidence in Parliament; by de-selection by their local constituency; or in the manner of Margaret Thatcher’s removal. And, the media, with relish, examine his or her every word and contradiction.

    And, Ministers of the Executive, and the PM, are all called to Parliament to explain why they have made the decisions they have. They are accountable to Parliament, and it is Parliament and the judges who ensure that the Executive are checked in what it does.
    Parliament, in the Act of Settlement, laid down a standard to which judges had to adhere. Parliamentarians should have, themselves, kept an eye on the judiciary to ensure their good conduct. But, that is not what has happened in the intervening 300 years since 1701. Parliament took their eye off the ball and sub-contracted judicial oversight to the judiciary. Is that really what is meant by a constitution based on checks and balances?

    Each judge is also to act independently of each other, to ensure, for example, that appeals are not judged on previous judges’ opinions of the case; but do they? How do we know? Because the judges tell us they do? They used to be influenced by the King, why do we believe that they are not influenced by each other, and look out for their collective interests, so that the administration of justice appears to all of us beyond reproach.

    Lord Denning said;

    “Hanging ought to be retained for murder most foul. We shouldn’t have all these campaigns to get the Birmingham Six released if they’d been hanged. They’d have been forgotten, and the whole of the community would have been satisfied… it’s better that some innocent men remain in jail than that the integrity of the English judicial system be impugned.”

    Is it because the word ‘independent’ has confused us, and we believe that we do not need to monitor their conduct? Or, do we all believe their own PR, that they are to be trusted absolutely? But, whatever the reasons, Parliament must ensure that the people it represents are safe from judicial capriciousness and prejudicial wrongs, even it is only a minority who secretly approve of Lord Denning’s perspective. But, because the judiciary are cloistered from proper scrutiny, we cannot know, for example, if a high court judge has behaved prejudicially in the way he has judged a case, because there is a chance that the appeal court may cover up those wrongs, so that the judge, cannot himself, be seen to have scandalised the court, thereby, the integrity of the judiciary remains sacrosanct.

    The judiciary should be accountable to Parliament for their continuing good conduct. There should be the actual, not the illusory administration of the rule of law in all cases. The judiciary should not be able to privately aspire to the principle, “that some innocent men remain in jail (or hanged) than that the integrity of the English judicial system be impugned.” If they are of that mindset, we the people, via our representatives, need to know.

    I somehow think that if the Prime Minister sanctioned MI5 to eradicate his or her opponents lives, liberty or possessions, just incase the integrity of his office might be impugned, we would, I should hope, be outraged. Indeed, if it ever came to that, we would be living in a tyranny. Yet, it seems that we are happy to live alongside that prospect if it means keeping the up the appearance of judicial integrity and honour for the sake of the standing of the administration of justice.

    After 1701 a number of judges were removed by impeachment, but, this device had not been used for such a long time that it is now probably obsolete. On 25th August 2004, Peter Hain MP – appearing for the second time in this paper – the then Leader of the House of Commons, told Adam Price MP, who was seeking the impeachment of Tony Blair PM, that impeachment had, “effectively died with the advent of full responsible Parliamentary government”.

    Perhaps impeachment is unavailable as regards politicians? But, should that device be declared deceased for the judiciary? An example of impeachment, and also an example of the judiciary being unable to police their own effectively, or in this case not at all, even in extreme cases, was the case of Thomas Parker, 1st Earl of Macclefield, Regent of Great Britain, Privy Councillor, Lord Chief Justice, and Lord Chancellor, amongst his titles. He was convicted of embezzling £11.000.000.00 in today’s money in 1725, which he must have done over a considerable period of time, and was only convicted and tried because of action taken by the House of Lords. This evidently demonstrates that the judiciary were not amenable to checking on the good conduct of one of their own, but were ‘happy’ to leave good conduct questions to the scrutiny of Parliament.

    The only senior judge to be removed from office by Parliamentary voting, as envisioned by the Act of Settlement, was almost 200 years ago in 1830, and this process is so underused it must be going the way of impeachment. His name was Jonah Barrington. What did he do to stray from the good conduct required by the Act of Settlement so that Parliament thought that they should be forced to act?
    Sir Jonah Barrington moved to France in 1815, to escape his creditors, who were seeking his bankruptcy. Whilst in France he still retained his judgeship and drew its salary, for 15 years. In 1830, a Parliamentary Commission recommended that he be removed from office, finally, because of misappropriation of court funds in 1805, 1806 and 1810. A question that this episode raises is why the judiciary did not step in to stop him drawing his salary soon after his escape? The judiciary perhaps did not think his behaviour so bad, and that it was better to look the other way so as to preserve the illusion of the standing of the judiciary and the administration of justice?

    Is that really how bad a judge has to be before Parliament can be bothered, and believe that a judge’s conduct is disgraceful enough to be removed from office? Indeed, it should not have to be really bad; the test should be conduct that is less than good, which is more aligned to the requirement in the Act of Settlement. It is clear that oversight of the judiciary was needed then, as it is needed, always. But of course, how would Parliament have known of his judicial malfeasance in public office and other criminality, if, they had to rely on the judiciary blowing the whistle on one of their own?

    That is why all types of conduct issues, including an oversight of the examination of how the judges are applying the law, shouldn’t be left to the judiciary, but to Parliament, so that Parliament can be sure that the judiciary are, in some shape at least, following the will of Parliament in their interpretation of its legislation, and are properly applying the rule of law consistently to all classes of litigant. Parliament have enough lawyers and cerebral members in its ranks to be able to effectively assess judicial competence, conduct in office and integrity. Why does it chose not to do so? Such a constitutional check and balance is fundamental.

    If Parliament were to oversee the judiciary then the administration of justice will improve and be more consistent. At the moment Parliament does not really know what the judges are doing, and if they are abiding by the good conduct rule, and do not have an effective mechanism or process to find out.

    The police, MP’s, doctors, lawyers, bankers, journalists, accountants and junior judges have all, very recently, abused their positions of power, and the judges have locked them up. But, Parliament does not know if our High Court judges have conducted themselves as we all have the right to expect when they are sitting in judgment on all of us. Whether it be in criminal cases, or in the civil branch of the justice system, where incidentally, Lord Denning was routinely encamped, and where miscarriages of justice are less likely to come to anyone’s attention.

    Today, there appears to be a belief by MP’s that the judges are untouchably independent. Therefore, they think, that Parliament has no business in assessing whether a judge’s conduct in what he does in his or her office is appropriate, or whether the judgments are consistent with the rule of law, or perhaps, consistent with the democratically elected lawmakers intentions. But, the whole point of our constitution is that nothing should be truly independent, all should operate under the watchful eye of the guardians in the other branches of our constitution. This is not about influencing the judiciary to depart from right and lawful decisions, but to ensure that they are acting lawfully.

    Parliament is in breach, may I suggest, of its obligations under the Act of Settlement, by handing its oversight responsibilities back to the very people it is meant to monitor. Clearly there is an imbalance in our Constitution today.

    MP’s and the Executive’s conduct can be scrutinised by the judges. As we know, MP’s can be sent to prison by the courts for what could ‘arguably’ be Parliamentary business, claiming more expenses than perhaps was allowed. Judges can tell Ministers that secondary legislation is illegal because the proposed changes to the law need to be enacted through primary legislation. Ministers can be told by judges that they have acted ultra vires, outside of their powers. Judges can interpret UK legislation in ways that Parliament did not intend at the time of its passing. They can give successive Home Secretaries grief in their interpretation of the Human Rights Act, for example, by refusing to extradite the unwanted. This is all very proper, it is what a proper system of checks and balances are supposed to achieve, the judiciary are meant to oversee the others branches of the constitution.

    But, what is clear is that the scrutiny is one way, it’s all in the judges’ favour. Where are the proper checks and balances on the judiciary envisaged by, and thought essential by, the Parliamentarians all those of years ago?

    The judges monitor their own behaviour by way of complaints to the Judicial Conduct Investigations Office (JCIO) – notice the word “Conduct”, which is a allusion to the Act of Settlement. This mechanism for complaints against the judiciary was enshrined in law in 2013 and tweaked in Statutory Instrument 1919, The Judicial Discipline (Prescribed Procedures) Regulations 2014.

    But, the judiciary ensure that the complaints the JCIO can hear are limited in scope. For example, collective or institutional judicial prejudice cannot be brought to the attention of the JCIO, and neither can judgments no matter how perverse or contrary to the rule of law, or even when series of judges have clearly ignored the rule of law. And, if a judge was to be openly discriminatory in his judgment, and therefore, by any standard would be acting contrary to the will of Parliament and the law, the JCIO will, in practice, refuse its admissibility. There is also evidence that the JCIO will, wherever possible, reject the complaint by declaring that they are not at liberty to investigate this or that, because of some limiting remit or other reason.

    But, if, a complaint improbably passes this first stage, it then goes before “a nominated judge”. If that judge deems it appropriate, onto an “investigating judge”. Judges investigating judges. Can that be right? Of course, the judges will say they are independent, but really, are they? We do not know.

    The next stage is before a four person disciplinary panel. This consists of two “office holders”, another name for judges, appointed by the Lord Chief Justice, the top judge. The other half of the panel consists of people who are neither, office holders, and therefore not judges, nor are lawyers, both of whom are appointed by the Lord Chancellor. But, here’s the catch, or should I say catches. Firstly; the non-lawyers have to be agreed my the Lord Chief Justice. Secondly; the most senior judge, who is nominated by the Lord Chief Justice, must be the chair.

    Finally; the most senior judge, the chair, has the casting vote; so effectively, the judges have three votes and the judge approved non-judges/lawyers only two. I believe it is a classic example of packing the jury with your own people, to achieve the desired result.

    Appeals are only available if the JCIO have handled the complaint incorrectly, not that the judge’s own complaint’s office has come to the wrong decision. In other words, there does not appear the possibility of appeal if the complaint is held to be inadmissible or, obviously wrong and against the evidence.

    The separation of powers is between the Executive, the Legislative and the judges. The Lord Chancellor is part of the Executive, he is not part of the Legislative, it was never really his responsibility to monitor the judges. It was the Legislative, who was impliedly tasked to oversee the judges in the Act of Settlement.

    Parliament, and the Executive, by effectively, and in practice, giving total independence to the judges, and by allowing them to investigate themselves, have allowed them to act contrary to Article 6 for such complaints, as the Office cannot be said to be remotely impartial and independent. And, it must be known by our judges that the process they are participating in is contrary to Article 6, unless we believe them when they tell us that they are totally independent of other judges. Perhaps they are? But, if we turn a blind eye, we will never know. Where is the oversight? And that is the point, we should not live in the hope that they are able to police themselves, there should be an external body that monitors our judges.

    Parliament does not know if the JCIO resides over a complaints mechanism that only gives the appearance of such, but which could exist, not to uncover and correct judicial wrongs, but to cover them up, whenever it possible can, so as to ensure the illusion of the integrity of the administration of justice is maintained. There is no real oversight; the judiciary are, quite literally, a law unto themselves.
    And, the judiciary have set up their branch of the constitution in a way in which prohibits allegations of judicial impropriety. For example, it might be expected that the ‘independent bar’ could be a source of judicial monitoring. The barrister’s code of conduct appears to invite such criticism, because, acting with “integrity and honesty” and a duty to, “maintain your independence”, is part of what a barrister does. But, it is trumped by, “your duty to the administration of justice”, meaning, it is a barrister’s duty not to, “diminish the public’s confidence in the legal profession or the administration of justice or otherwise to bring the legal profession into disrepute” [Code of Conduct: 8th Edition: 301(a)(iii)]; to that can be added, so that it is continued to be held in high esteem, regardless of whether it actually should. Is this the judicial version of the Emperor’s new clothes?

    Are we all being conned, and no one dare say so? The incestuous relationship of the bar to the judiciary, and the prospective ambition of barristers to rise to judicial office, could also be an obstruction to such policing. This has a parallel in the NHS, where it is recognised that there is a need to change the bullying culture applied to whistle-blowers, because it’s culture is seen as a damper on improving health care. The judiciary and bar, within their code of conduct, culture and procedures, make any criticism of our judges in their office, very highly unlikely, because, whistle-blowing is simply not done, and will have consequences.

    I recently asked a practicing barrister if an High Court judge was, essentially dishonest, because a very well known rule of law had, on the face of it, been obviously and knowingly misapplied. He said that it was impossible for a High Court judge to be dishonest because they had taken an oath, and after years on the bench would have been found out. I told him that Dr. Harold Shipman had taken an equally important oath, but that did not stop him killing up to 250 of his patients over many years. Still, he could not accept the possibility of judicial dishonesty, and in any case, more to the point, his code of conduct, and his ambition, did not allow him to express that possibility.

    I’m reluctant to say this, because it will be taken in the wrong way, and it might be seen as extreme by some people, but, I’ll say it anyway as it may provoke debate. A reason that Mr Putin has such high popularity within Russia is because he controls the media and stops any criticism. Why is what Mr Putin does so dissimilar to the control the judiciary exercise in this jurisdiction? I’m not saying that our judiciary are like Mr Putin at all, perhaps they are all saintly, but, the fact is we do not know that they do in dispensing justice. And, it begs the question, if they are all so saintly why is there the need for such a level of control over their PR and why are their rules and procedures designed to protect the administration of justice from criticism? Democracy demands openness, we do not have that with the judiciary.

    Our judges, perhaps the most powerful and entrenched branch of the constitution, have no real or meaningful oversight brought to bear on them.

    I respectfully suggest that there is a need for Parliament to oversee the administration of justice in a democratic modern society, and not just accept the appearance of justice as it currently exists, because, it could well be a sham? Parliament cannot know. Matters of such constitutional importance should not be left to chance; nor should the apparent integrity of individual judges, nor the self-serving collectivism of our judges, as implied by Lord Denning.

    The judiciary, currently, are able to police themselves, in many ways similar to the police, only more so, and our MP’s should know how unsatisfactory that can be; Plebgate being a recent high profile example. And, as BBC news reporter said, ‘if they can do that to a Minister of government, what type of justice is being served up in our deprived estates up and down the country?’

    In the past there have been cases of really shocking judges, for example, Justice Luke Fox (1805), Judge Robert Johnson (1805), and Sir Justice Grantham (1906 & 1911), and Cecil Harvey QC in 1958 said that during his time at the bar, “there had been some dreadfully bad judges. None worse than Lord Hewart, Lord Chief Justice”; and he called Mr Justice Darling “a real shocker”. But, all have escaped Parliamentary censure or removal, excepting Sir Jonah Barrington. Today, one would hope that our standards are very much higher, and as a people we should demand the highest standards from our judges in the way in which they conduct themselves in office deciding on our liberty, our right to our property, or our reputation. But, it is implied, in an article taken from, “The Short Book of Bad Judges” in the Inner Temple Year Book 2014-2015, by Master Graeme Williams, that the problem of bad judges is still with us.

    Our MP’s understand the need for a free press; that Ministers should be required to account for their actions in Parliament; and the PM answers to all MP’s and the watching country at PMQ’s, but our judges need not answer to anyone except themselves in the way they conduct themselves in their profession.

    Yet, during the enquiry into the press, on 28th May 2012, Lord Justice Leverson’s closing remark to Tony Blair was,

    “I’m not in any sense suggesting that they [the press] shouldn’t continue to hold politicians and judges to account for everything that they do.”

    Did his Lordship really believe that judges come under the same scrutiny as politicians and that they should be held to account for everything they do? Surely not. And, at the same time he said this, he would have been aware that Peter Hain MP was facing trial for trying to hold a judge to account by criticising him in his memoirs. Was this a case of doublethink, holding two contradictory accounts in his mind at the same time, believing both to be true?

    It would appear that the judiciary in this instant was mounting a preemptive PR campaign, which clearly is contrary to the de facto reality. But, if they, the judges, really think they should come under the same scrutiny as the politicians, and he was not just setting up a smoke screen to hide the reality of the situation, then it would appear the the judiciary believe, or at least can have no objection that they too should be subject to very close scrutiny by an external body.

    However, the press, as the situation currently stands, might be a little wary of providing any real judicial scrutiny without some further encouragement, especially as they might find themselves in court to face the very people they might be critical of. No, it might be better, certainly initially at least, that the press should report on questions directed at the judiciary by a body within Parliament tasked specifically to oversee this arm of the constitution.

    There is a need to address this important constitutional imbalance, were we have allowed the judiciary to become untouchable and unaccountable, to all except themselves. There is a need to revert to the implied provisions and safeguards in the Act of Settlement. This is especially apposite if we are to be ‘rid’ of, if that is possible, or a worthwhile an ambition, as some may wish, the Human Rights Act, the European Court of Human Rights, or the Convention on which it is founded. But, in any respect, there is a need to ensure that our MP’s take responsibility for the fundamental rights and freedoms that they have fought so hard to ensure over the centuries and not hope that such an external body can do their job for them.

    Is it time to set up a Select Committee to create an oversight mechanism, which ensures a dialogue between these two branches of our Constitution, to ensure our judges conduct themselves, independently, but appropriately, in all aspects of their office? We are perhaps 300 years late, but not too late. Or, perhaps is it time for the JCIO to change and to come under the guardianship of such a Committee?

    Should judges be asked to appear to explain their more incomprehensible and perverse rulings and actions, just like all other parts of our society are called to do from time to time in front of a Select Committee? High Court judges are extremely bright and well versed in the law, and their judgments are considered and thought out, unlike politicians who the press are always attempting to catch out, by off the cuff answers to tricky questions. They could be respectfully asked, and should easily be able to explain themselves, why evidence was weak or strong, and why they rejected or accepted this or that legal principle or rule.

    It probably need not be the high profile cases that are a target of the Committee, because the judges are more likely to properly apply the rule of law when they think the press might be taking an interest, but the quieter, less high profile cases, were justice is not being seen to be done, and so may not be.

    This proposed oversight can only bring a better application of the rule of law to all our people if judges from time to time are asked to explain why they have ruled or behaved as they have. It will enhance the Legislative’s understanding of the way judges think, and therefore should, in turn, lead to a better legislative process and less judicial activism. And, a desirable consequence could be, better democratic accountability. After all, we do, don’t we, live in a democracy? And, this should in turn, lead to a better judiciary?

    Your comments on the above would be greatly appreciated.

  3. Bill Bowring
    December 11, 2014

    Excellent piece by Conor Gearty – I started teaching Constitutional Law in 1990 with Freedom Under Thatcher (Ewing and Gearty) as the textbook – great to see that the fire still burns bright!

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