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Few contest that the role of the judiciary in the British constitution is changing. We shouldn’t be surprised if public attitudes towards judges change with them.

This afternoon Michael Howard and Charles Moore joined Joshua Rosenberg, a legal commentator, and David Hope, the former Deputy President of the Supreme Court, on a panel organised by Policy Exchange’s Judicial Power Project to consider how an independent judiciary can be held accountable for the power it wields.

At the end of the discussion it seemed clear to me that there were two unofficial ‘sides’, with Lord Howard and Moore on the one and Lord Hope and Rosenberg on the other.

Amidst an amicable and informative debate on the specifics of the High Court’s Miller judgement on Article 50 and whose quotes meant what in what context, Howard and Moore made a broader argument that the judiciary has engaged in a sustained effort to expand its constitutional authority, and this will necessary lead to a change in how they’re scrutinised.

One important driving force behind this shift, according to Howard, was that in his experience judges tend to be personally disposed towards the European model of judicial governance and against executive power. This creates a “mindset” which leads to the interpretation of statute in ways not intended by Parliament.

(Rosenberg perhaps betrayed a shade of this sentiment when he summed up the Miller case as about whether or not the “ancient” and “ill-defined” powers of the prerogative could be wielded without Parliamentary say-so.)

He further argued that when Hope spoke of the gradual erosion of Parliamentary Sovereignty he was referring to a process undertaken unilaterally by the judiciary, without reference to Parliament. Moore followed this by quoting Abraham Lincoln’s warning:

“If the decisions of the Supreme Court are irrevocably fixed, Then people cease to be their own masters, and practically resign government into the hands of that eminent tribunal.”

Speaking from the floor Professor Christopher Forsyth, of the University of Cambridge, warned that whilst a direct challenge to Parliament by the courts was unlikely there was a much greater risk that the judges would pay lip-service to the principle – as Lady Hale does in her now-infamous Malaysian speech, when she disavows any desire on the part of the Supreme Court for the power to strike down legislation – whilst delivering judgements which undermine it.

The upshot of all this, argued Moore, was that the public’s attitude towards the judiciary would evolve along with their new and enhanced role, and intrusion into the political arena would attract political criticism. Given that judges have tenure (barring misbehaviour) and aren’t appointed politically as in America, this is the only vehicle available for holding them accountable.

Hope and Rosenberg’s main response to this charge was that ultimately Parliament is doing this do itself. It is Parliament that failed to make the consequences of the EU referendum binding; that wrote the Sewell Convention into the Scotland Act; that ratified the European Communities Act and the Human Rights Act; and so on.

Regarding the press Rosenberg argued that it was perfectly legitimate to single out individual judges for criticism – he has done so himself – but that the Daily Mail’s coverage was beyond the pale. Furthermore, Hope argued that the shifting nature of criticism and scrutiny was leading to fewer people opting to enter the judicial profession, which could lead to problems (a weaker bench?) down the road.

Howard on the other hand argued that the judiciary must be prepared to endure criticism “in the most robust terms”, and quoted the President of the European Court of Justice: “if judges can’t stand the heat, they will have to stay out of the kitchen”.

Hope further suggested that whilst the judiciary cherished the free press it was important for journalists to consider the effect of their writing on public support for the judiciary, the erosion of which could be very damaging. But the same could be argued of coverage of politicians: the age of deferential journalism is over, and our political institutions have seldom been held in lower public esteem.

This creates space for the transfer of power to external bodies, ‘independent’ inquiries, codes and bodies of rights, and so on. It’s very likely that the critical coverage will follow the power, and hard to see this as unjustified.

The nakedly political approach to the US Supreme Court is, after all, a reflection of its political role, and as I’ve argued elsewhere once the Court places limits on what political institutions can do then efforts to exert political pressure on ‘apolitical’ institutions are inevitable.

The President of the ECJ appears to concede that political ‘heat’ is the price judges will pay for increased power, and if our own Supreme Court wish to take up the mantle of ‘guardians of the constitution’ (a new one, as Moore pointed out) they’ll have to do the same.

 

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