Lord Neuberger has raised concerns this week about the effects of one of the quietest revolutions in the British Constitution for many years.
Under the Constitution, the final step in any appeal had traditionally been to the House of Lords. They had been regarded as the Guardians of the rights of the people although the role had been delegated exclusively to Lords who were eminent lawyers, although they still exercised that right and power within the overall role of the Upper House. Law Lords mixed with, and had a sense of responsibility towards their peers whilst exercising a separate function that few felt was functioning badly.
The reform was announced by Tony Blair without the knowledge of his then Lord Chancellor, and with no prior discussion. It represents, in some way, the triumph of Napoleonism and the spirit of the French Enlightenment, and yet, far from being a true expression of " Pure Reason", has within it the same flaws of many ancient regime institutions.
We are bound to cast our eyes across the Atlantic to see how matters unfolded there. The Founding Fathers may have been inspired by French philosophers, but they reformed within a Common Law system which they valued and preserved, and so that may serve as our best predictive model.
The Supreme Court of the United States has become a highly politicised and controversial body. No election has the potential to shape that country’s future in the same way that appointments to the 9 "man" Court and the political battles over the appointment of Supreme Court Justices are the most long lasting legacies of many Presidents.
Whether one is interpreting a Written Constitution, or developing the jurisprudence of "Human Rights", the role of the Judges is and will be largely political in nature. Mere technicalities of Law are largely sorted out in the lower Courts and the Judges can and do regulate those cases they will invite into their chamber and those they will not even hear. That is a position of prerogative and power previously exercised on behalf of the monarch only.
The great American advocate Jerry Spence has identified a key flaw in the argument that these are legal institutions only. If, he asks, these August lawyers are simply declaring the law or applying the cold steel of reason to a technical problem, how come the Court regularly splits on predictable lines, 5-4, with the Judges aligned to the prejudices of the politicians who appointed them? That is no indicator of legal logic. If it were surely our best brains could not fail to agree.
The aspiration of the Enlightenment had been to do away with the flaws of Man and to usher in the rule of Reason. Instead the Americans have found the Court legislating contrary to the majority views of the electorate. That used to be called "undemocratic".
Many in this country do not appreciate that in the USA highly contentious issues such as the death penalty, abortion policy, gun control, same sex marriages, will not be decided by the people’s representatives, but rather an oligarchy of appointed individuals who are virtually unremovable. This is the model we are following and with little public debate.
There is a school of Jurisprudence called the "American Realists" who long ago identified the principle that if you want to know what the Court will do, don’t look at the Law – look at the Judges. Now consider our new experiment and ask yourself if you believe that Tony Blair would have instituted this reform if the Law Lords had all been fox-hunting men?
Perhaps even more intriguing is the current composition: 11 Men, 1 woman – and who do you think has been entrusted with the fewest Judgements?
Educationally, five are from Oxford, six from Cambridge and only Lord Kerr, the Northern Ireland Chief Justice, makes it from outside the Oxbridge background. Now this may be unobjectionable if one is an elitist or confident that technical competence is at the heart of the matter, yet if we are moving into new Constitutional territory, is it not surprising that there is so little anxiety on the Left about such a closed class of legislators? It is only the lawyer who can join this highly influential caste.
In the world of pure reason, where "human rights" can be untainted by base political motive, where Government can be denied its policy, and the people not trusted with a sense of proportionality, let us reflect a moment on whether, for example, the reasonableness of control orders might have been more highly regarded if the targets had been exclusively Oxbridge colleges and not Joe Blow on public transport.