Martin Sewell is a family Solicitor from Kent
Before the country embarks on a lengthy debate about House of Lords Reform, it might be worth considering if there is not a more important and pressing debate which needs to be had about another, even more powerful, unaccountable, and unelected group of legislators – The Judiciary.
Today’s news story that Twitter is technologically challenging the Courts is fundamentally about ordinary people resisting a form of interference with free speech created entirely by a handful of Judges, who have taken the additional step of advancing claims to Judicially legislate under a cloak of secrecy.
The advancement of the Laws of Privacy is not the first of these initiatives, but its difficulty with the new social media may make this issue the one that breaks the camel’s back so far as the public are concerned.
Judge made law relating to asylum seekers, prisoner’s rights, and the conflict between religious conscience and equality legislation have all caused a fracture in the public confidence in our Judiciary, and yet, just as it was the more prosaic issue of the Stamp Tax on Tea which precipitated the American Revolution, it may well be Twitter, and our attachment to it, that brings this important Constitutional question into focus.
The Study of Legal Theory may seem a dry and dusty discipline but it has much to contribute to this debate. There is a School of Jurisprudence which teaches that if you really want to understand and predict the course of the Law you should not study the Statutes or the Care Reports – you should look at the Judges.
In his book “Win your Case”, written by the most successful US Trial Lawyer of his generation, Jerry Spence points out that if Judicial decisions were truly about cold intellects interpreting fixed texts in a scientific fashion, the Supreme Could would not routinely hand down 5:4 split decisions on obscure points of tax law!
The American Realists remind us that Judges are human, prejudiced, emotional, political, self regarding and every bit as fallible as any other legislator.
In the US context, part of the bitterness over the issue of Abortion lies in the fact that the issue was never resolved through the ballot box but as a result of a Court case brought by an ambitious lawyer, against a complacent opponent before a 9 man Supreme Court which decided the case under the same principle as the Court uses with the Super-Injunctions – “The Right to Privacy.”
Any judge does have – and should have – a degree of discretion within which to adapt law to modern conditions, but as the Jurist Ronald Dworkin pointed out, the ambit of that discretion ought to constrained.
You may stretch or compress the hole in the middle a little, but not break out of the bounds of your “doughnut” which, in this analogy, represents the Statute Law. Some have called that legitimate area of judicial discretion the “Sphere of Consensus”.
It ought to be a consensus, and in touch with the society which it seeks to regulate. It ought not to be a vehicle by which to advance the agenda of a minority that cannot make headway through the usual democratic channels.
With the Human Rights Act, progressive politicians and lawyers sought to elevate the role of the Judges above elected politicians. They did so on the back of the failures of the European schools of “ rational” and “enlightened” Jurisprudence which had failed in their struggles with Fascism and Communism. Interestingly the Common Law Countries, rooting their judiciary in the historic past ( however “irrationally”) never went down those authoritarian paths. To their credit, the Courts in South Africa and Zimbabwe always maintained a degree of Common Law independence, and this is no coincidence. We give away a Common Law heritage at our peril.
We ought to be quite clear that the controversies and failings of the Human Rights culture – of which the Privacy Law is just the latest incarnation – is not accidental. It was always the intention of the progressive Jurists, who know best in these things, to sidestep, or rather walk over the legislation of elected Parliaments.
If you talk to lawyers today, they will be able to name for you those Judges advancing their own specialist agendas according to their own world view which has never been scrutinised by any democratic process.
If we are to be content with Judge made Law taking an expanding role in the country, then we shall need to consider whether, at the very least, Parliamentary confirmation hearings ought to be introduced to ensure some element of public protection and oversight. This is particularly so in the case of the Supreme Court whose members are appointed to a highly privileged position. Many of the current members are probably significantly more removed from contact with Joe Public than many of the Dukes and Aristocrats whose place in the Upper House offended reformers.
Any such "Interference with Judical Discretion" will of course bring howls of anguish from our “Progressive’ Guardians of Judicial independence. They would much rather divert the debate to the much less pressing issue of reforming the Second Chamber although that is offering a much less important challenge to the democratic oversight of our rulers.
The problem is that progressives were the greatest supporters of the regime under which extra Parliamentary legislation is introduced. “Judges may be unelected unaccountable legislators” reason the Liberal Left, “ but at least they are our unelected unaccountable legislators." Ask Cherie Blair.
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