The wasp-coloured robes of the Supreme Court’s judges stand out from the official photograph. So do their white faces. The youngest is 60. All but one are men. All were privately-educated – with the exception of that sole woman, Lady Hale. Eight studied at Oxford or Cambridge. Two are old Etonians. Were the judges to be treated like Conservative MPs, they would be ripe for a Cameroon makeover. They would be told that they “need to look more like modern Britain”. They might even be lampooned, as some Tory MPs once were, as being like “NHS bed-blockers”. Roll back the years, and Theresa May might even label these benign-looking wrinklies “the Nasty Judges”.
That the lady and gentlemen of the Supreme Court are so white, so old, so male and so (relatively speaking) posh bears witness to the immunity of the judiciary from the discrediting of Britain’s institutions. The monarchy, the Church of England, MPs, the press: all have been laid low, during the past quarter-century or so, by the levelling winds of sensational revelation and public anger. Not so the judges. Only the generals have remained so unruffled. A judge may be scragged by the papers if he delivers a controversial verdict. However, it is still unusual for the judiciary for be targeted collectively, or for judges to be gone after over how they live, what their families say, or what they think. Perhaps that’s why today’s still look so much like yesterday’s.
But appearances can be deceptive. In other and deeper ways, the judiciary has been changing: it may not look different, but it is different. And that distance from controversy is beginning to shrink in consequence. The lather over the High Court’s recent judgement on the Article 50 case, Lady Hale’s lecture and Lady Neuberger’s tweets are signs of the times. The Daily Mail‘s claim that three High Courts are “enemies of the people” – with its smack of the firing-squad – was an extreme reaction to a shift in our public culture. So what is the nature of the change? For a non-lawyer to describe how judges reach decisions is as risky as it is for non-doctors to describe how doctors perform operations. But the attempt must sometimes be made none the less.
Very simply, our common law tradition is that law emerges from below. It is not made by judges but discovered by them, and Parliament is the supreme source of law. The perspective on the continental mainland is different. Law comes not from below, but from above – from the application by judges of a set of abstract principles. It follows that law is not so much interpreted by judges as made by them. And the long and short of it is that our consensus for common law and Parliamentary supremacy has been quietly breaking down for some time. The reasons are disputed. One view is that Britain membership of the EU and the ECHR, with the consequent spin-off in the latter case of the Human Rights Act, is the main driver of the change.
Another is that the judiciary specifically, and lawyers more generally, have been moving leftwards, following the example of other urban-concentrated professionals, such as doctors and teachers. There is probably truth in both explanations, which interact with each other in any event. Some will say that there is nothing remotely left-wing about human rights. If these are simply a shorthand for justice, this is true. But the British – or perhaps specifically English – way of considering justice was to discover it in the workings of case law, or to demand it in the decisions of those they elected, rather than find it in codified declarations of notional ideals.
If all this sounds like a complaint about the judges, it really isn’t meant to be so. And they have a threefold defence. First, that many of them, presumably most, still believe in Parliamentary sovereignty. If you doubt it, read the final chapter in Tom Bingham’s superlative The Rule of Law. “The British people have not repelled the extraneous power of the papacy in spiritual matters and the pretensions of royal power in temporal in order to subject themselves to the unchallengeable rulings of unelected judges”, wrote the man who was in his time Britain’s most senior law lord, dismissing the claim that the principle of Parliamentary sovereignty is judge-made.
Second, that judges have less encroached onto political space than MPs themselves have left it vacant. Who signed up to the ECHR? Who joined the Common Market? Who agreed the Human Rights Act? Who created the conditions for the growth of judicial review? Don’t blame judges for MPs’ mistakes. The third response is the most thought-provoking. It is that far from being lords of all they survey (literally, in the case of those who sit as members of the Supreme Court), the judges are under intolerable pressure – because of a more than usually egregious mistake by a more than usually egregious politician.
In the latest edition of Standpoint, Jonathan Gaisman reports that a recent recruitment competition held by the Judicial Appointments Commission advertised up to 15 High Court vacancies, but that only eight of those places were filled. Fewer people, he writes, want to be judges because Tony Blair’s short-termist decision to meddle with the judiciary has had devastating long-term consequences. His stripping away of the Lord Chancellor’s powers to appoint the judges and champion their interests has led to a banal appointments system, civil service interference, and complaints over pay and rations – while the workload rises ceaselessly.
According to this view, the Lord Chief Justice, who now represents the judges to government, cannot carry the same weight as a lawyer who is also a politician. For even if the Lord Chancellor is a lawyer (which the last three occupants of the post have not been), he or she will have their gaze fixed elsewhere – on the jails. Judges may be unhappy. But they are considered less likely than prisoners, in the eyes of Ministers, to trash their surroundings while under the influence of psychoactive drugs. So while the next generation of judges may be less white, elderly and male it risks, in the eyes of its critics, being no less liberal-leaning – but far less well-qualified.
There are two ways of fending off a Supreme Court that may look better but will actually be worse. The first is to accept that while the EU is going, the ECHR is here to stay, and most of the Human Rights Act too, and that the judges are going to have to get used to being in the political arena. That implies American-style hearings. I detect some sympathy among Ministers in the Justice Department for this direction of travel. But more senior lawyers may then duck out of applying for the bench, just as many senior business people now duck out of politics. They are likely to conclude that the prestige isn’t worth the publicity – or, as they see it, the harrassment.
The logical alternative is to turn back the clock, or try to. In this case, it would mean re-creating the old role of the Lord Chancellor, or something like it, together with his or her own department. But logic isn’t everything in politics; frequently, it is nothing at all. Furthermore, Theresa May has ruled leaving the ECHR, and the Human Rights Act is not to be abolished, but replaced. So tensions over the role of the judiciary are likely to linger. We need to give more thought to how to resolve them. As Henry Hill reported yesterday, Policy Exchange, with its judicial power project, is setting the pace. Others need to keep up.