Gareth Roberts provides a barrister’s take on the Conservative Party’s desire to curb the independence of the judiciary.
Last week, I have the privilege of appearing in a criminal case in Manchester Crown Court in which a newly appointed recorder was sitting as a judge for the very first time.
A crown court recorder is a barrister or solicitor who is deemed capable enough to sit as a Judge and exercise all the powers and cope with all the pressures that the position holds.
That the new recorder was young women in her 30s from a state school caused no concern or incredulity amongst any of the advocates involved. None of us expected her to do anything other than to discharge her new duties with diligence, expertise and skill, which is exactly what happened. She was excellent.
Our confidence on her ability was well-founded on our knowledge that she had gone through a selection process administered by the independent Judicial Appointments Commission (JAC) that is as arduous as it is fair. It consists of six exhausting rounds in which the unsuitable are whittled out, as their legal knowledge, judgement, composure under pressure and empathy are tested. Sure, it doesn’t suit everyone’s particular skill set, but – as a way of ensuring that the judiciary is inclusive, dynamic and well equipped to meet the fundamental challenge of exercising the law without fear or favour – no one can complain. The JAC is doing a pretty decent job.
The process for selecting Judges wasn’t always this rigorous or fair. A decade ago, the sight of a young woman presiding over a case in the crown court would have caused quite a few eyebrows to be raised. Back then, judicial appointment was almost exclusively a gift handed out to those deemed ‘suitable’ after putting in the years at the coalface of the crown court. ‘Suitable’ inevitably meant those who hadn’t rocked too many boats and danced in the right social circles or – more often than not – those who had simply survived as a barrister for long enough.
Inevitably, the judges of yore were white, late middle aged, privately educated and male. Although most were perfectly adequate, more than a handful would preside over court with their barely concealed prejudice and bile dripping from their impatient lips. They were happy to bully young members of the bar and rarely displayed any empathy towards the often petrified witnesses coming into the courtroom for the first time to give evidence.
Every court centre had at least one judge who everyone wanted to avoid and those judges were invariably the ones responsible for the worst miscarriages of justice and manifestly excessive sentencing.
They Keep Us Safe
The JAC was set up in 2006 to drag the judiciary into the 21st Century and, overwhelmingly, it has succeeded in that task.
Lawyers and court staff are happy with the judges and recorders who have managed to navigate its selection process and now adorn the bench. The quality of the judiciary is now extremely high and the number of women judges and judges coming from ethnic minorities and diverse social backgrounds has grown to ensure that the justice system more closely reflects the society it serves.
At the very heart of each appointment is the understanding that every judge from a lowly deputy district judge to the highest Justice of the Supreme Court is independent of anyone and everything that would distract them from their job of upholding the law of the land.
Nothing represents the principle of independence from political interference more profoundly than the Supreme Court.
In the decade since it replaced the House of Lords as the final court of appeal, the Supreme Court has sat on matters of massive social, political and cultural significance. It has addressed issues as diverse as assisted suicide, the HS2 rail link and divorce settlements. It has determined important aspects of our criminal law on hearsay, joint enterprise and the admissibility of someone’s character into proceedings. It has presided over issues pertaining to worker’s rights, tax law, extradition, our constitution and the judicial review of government.
And it has done so with great skill and objectivity – independent of any individual or politician who would seek to influence them. They keep us safe. We are a country with a proper separation of powers and we have no cause to worry about judges and no good reason to reform the way they are appointed.
Or so you would think.
Gunning for the Judiciary
In the past couple of years, the independence and ability of our judges has been questioned by those who would seek to undermine them for brazenly political reasons.
The right-wing press, with the Daily Mail at the helm, led a pernicious campaign suggesting that our top judges were somehow in hock with the anti-Brexit campaign and were hell-bent on betraying the will of the people. A concerted attempt was made to paint them as ‘elitist’ or ‘establishment’. Some of them were exposed as liking jazz music and fishing as though this meant that they were somehow working against the common man. It is, of course, part and parcel of the populist right-wing’s dangerous strategy of discrediting any expertly-held opposing opinion as being somehow contrary to the wishes of the ordinary person. It is out of the Donald Trump playbook.
Worryingly, the Conservatives have picked up the Daily Mail’s ball and are now running with it. Indeed, the moment that that Supreme Court ruled last year that Boris Johnson’s attempts to prorogue Parliament to circumvent its attempts to scrutinise his Brexit deal was unlawful, the Conservatives started to plan a revenge. It is clear that they want to ensure that the excesses of their Government can not again be held up by the due process of law. They want to have the top judges in their pocket.
The Conservative Party’s manifesto promised to set up a “Constitution, Democracy and Rights Commission that will come up with proposals to restore trust in our institutions and in how our democracy operates”. Behind the benign language, the Tories are gunning for the judiciary and are intent on changing the way in which Supreme Court judges are appointed.
Dominic Cummings, the Prime Minister’s chief advisor – who has little understanding of the work of the JAC – wants to follow the US by allowing the Government to appoint judges, with parliamentary hearings prior to appointment replacing the rigorous and objective process overseen by an entirely independent commission. He has to be resisted.
Politically appointed judges would spell the end of our independent judiciary, an end to true separation of powers and end to the progress that has been made to ensure that the judiciary reflects our nation as a whole. Instead, we will have judges who boast the ‘right political credentials’, who won’t make the ‘wrong’ decision when they are called upon to adjudicate over the actions of the government who appointed them, and – even more troubling – judges who will be happy to follow the philosophical bent of those who were responsible for their appointment, which could mean issues such as abortion rights, euthanasia, workers’ rights or immigration being determined by political persuasion rather than objective, forensic analysis.
Everyone should be worried about this as just about every regressive or authoritarian regime that has existed took its first steps by placing a boot upon the throat of its judiciary. We can’t let it happen to the UK.