Thirty years ago a left wing law professor, John Griffith, wrote a famous book entitled The Politics of the Judiciary. In his book Griffith challenged the traditional belief in judicial ‘neutrality’. This traditional view held that judges are apolitical neutral arbiters, who decide cases based on the correct view of the law, and divorce their decisions from their own political beliefs and assumptions.
Griffith set out to explode the myth that judges are ‘political, economic and social eunuchs’. Judges, he argued, are frequently required to make assessments of where the public interest lies, and as such, they regularly make political decisions. And in making political decisions, judges cannot, and do not, act ‘neutrally’. Their decision-making will inevitably be informed by their personal backgrounds, world-views and assumptions, whether conscious or otherwise. And more often than not those backgrounds and assumptions are white, male and upper middle class.
Griffiths’ insights shaped left-wing thinking about the legal system for many years. His book led to demands for a judiciary more representative of British society, more diverse in terms of race and gender, and more in touch with the real world.
Recently, however, many people on the left seem to have lost this capacity for critical thinking about the pronouncements of senior judges, treating them as fonts of unchallengeable wisdom on matters concerning the relationship between the individual and the state. Whereas in the 1970s and 1980s judges were often seen as reactionary, now they are perceived by many on the left as a bulwark of civil liberties against an over-mighty executive. Judges once considered as right wing and anti-trade union are now applauded for their defence of traditional civil libertarian principles in areas like crime and terrorism.
Yet often that applause is unjustified. A case in point is the recent decision by the law lords to halt the use of anonymous witnesses in some criminal trials, a decision which Jack Straw has announced the government will overturn. Straw points out that in the real world witness intimidation is a fact of life, and that particularly in cases involving serious drug and gun crime, witnesses will often simply refuse to testify unless they have the protection of anonymity.
As John Yates, assistant commissioner of the Metropolitan Police, points out, the law lords’ decision means that around 50 men convicted of serious crimes, serving lengthy sentences, could now be set free. This will undo much policing work in inner city communities. It will mean that the police will be seen in those communities as having ‘broken their word’. It will be deeply damaging to the fight against drug and gun crime.
And what do we, the public, know of the judges who made this decision? How many of us can even name them? Is it right that this issue should be decided by judges – overwhelmingly from public school, commercial and chancery law background – who know virtually nothing of the realities of policing and law enforcement? At one time the left would have had no hesitation in asking such questions.
I would suggest that, as an MP for a constituency with its fair share of from drug and gun crime, Jack Straw may be better qualified to weigh the public interest on this subject than judges who have spent their careers immersed in commercial contract cases. But many people on the left now seem to believe that judges possess some unique and incontrovertible wisdom on matters of civil liberties and that to disagree with them, as Straw has done, is an illegitimate usurpation of power.
In the US, Supreme Court judges are nominated by the president and vetted, and often vigorously challenged, by Congress. Their backgrounds, previous judgements and political views are the subject of fierce debate. Presidents know that their Supreme Court appointments may be their most lasting political legacy. This process has many flaws, but at least it recognises judges for what they are: players on the political stage.
And that’s what we need to remember about senior judges in this country: they are players on the political stage. Just as Griffith argued, in a democracy their motives, assumptions, backgrounds and suitability to make decisions affecting all of us are matters of legitimate public debate. They may not always be especially well qualified to determine where the public interest lies. They can and often should be challenged and criticised. And people on the left should know that better than most.
It seems to me that the primary paradigm in that which makes the news, regarding senior members of the judiciary, is cut between liberal and authoritarian, rather than left or right; which naturally makes it difficult to apply prescriptions to the prospective action of ‘the left’ on any such basis.
For me, while judges are called to make political decisions, they are only free to do so within the constraints of statutory materials. If the Government does not like, for example, how judges interpret the HRA 1998, all it has to do is change it; but then it has to worry about breaking the precedents of the European Court for Human Rights.
In which case, I would suggest derogation.
However, the government is too timid to derogate (I would argue myself that derogations should be kept to a minimum, and that the solution is to draft more liberally orientated legislation, for example in terrorism).
If the government thinks the courts get it wrong on Human Rights, it should have the fortitude to derogate and proclaim itself uniquely authoritarian within Europe.
But it refuses such decisions on the back firstly of the alternative solution of attacking the judiciary for often correct and congruous interpretation, and secondly because it possibly recieves poor legal advice on the bounds of compatibility. Perhaps it should raise pay at the Government Legal Service!
I think on reflection you will also agree that the judgement on anonymous witnesses is different. Jack Straw seemed to agree on TV earlier that the legal judgement was a correct one (not that it is his place as a member of the executive to criticise the judicial arm).
According to him, the ratio decidendi behind the decision was that judges said precisely that they DID NOT have the right to make decisions over these matters (as they had been doing previously), and that in fact it was for parliament to tell them what to do. In other words, it was a legal mistake to impute a common law basis into this, and that accordingly, a new stature would be required.
And it is forthcoming… hopefully we’ll end up in a situation with everybody happy and legally correct, despite the waste of parliamentary time.
“Just as Griffith argued, in a democracy their motives, assumptions, backgrounds and suitability to make decisions affecting all of us are matters of legitimate public debate.”
Indeed; but are they matters for the exective?
Public interest is subject to statutory definition, for sure.
But politicians place is to make the law, not to counter-interpret it.
Some interesting points Miller. Keep in mind, though, when considering whether the Law Lords were simply divining the ‘correct’ legal answer, that the Court of Appeal had reached a different conclusion – that witness anonymity was not contrary either to the common law or the ECHR. If you read any court judgement , it will be expressed in terms of precedent, and if you read it in isolation you could easily conclude that judges simply look at precedent and tell us what the ‘correct’ answer is. That’s partly what they try to do, of course, and they are entirely genuine in seeking to do it. But in reality a range of possible interpretations of precedent are open to them. The House of Lords, in finding the practice of witness anonymity to be contrary to the ECHR, has reached the one conclusion, of the several possible conclusions open to them, that makes it most difficult for the government to change the law (as you rightly point out).
I probably sound as if I’m being rather reductive- posh judges don’t care about poor victims of crime and therefore remove witness anonymity. It’s obviously vastly more complex than that ; after all, the judges in the Court of Appeal who held otherwise also come from posh backgrounds as well! But the Law Lords, however much they may frame their judgement in terms of precedent, are in reality making a determination of where the public interest lies on the issue. But we pretend otherwise…
(The lack of paragraphs can be annoying; my apologies for the format of the following).
I think you make a good point and are far from reductive.
But I’m nitpicking about your example for application, I suppose.
“But in reality a range of possible interpretations of precedent are open to them. ”
Indeed… and Griffith (who I am privileged to have read) can point to plenty of examples where this is abused (notably with regard to decisions around trade unionism), and can also give plenty of examples why a motivation or prejudice towards such perversities occur.
I suppose that my point is that there is an equally valid counter-critique; let’s go back to the quote I just reproduced:
“But in reality a range of possible interpretations of precedent are open to them. ”
That’s very true. But this is the inherent nature of a common law system into which this case (obviously) is simply a natural and minuscule part. Common law requires value judgements; You wins some and loses some.
In response we can either adapt a permanently critical posture, one which is neutral or leans either way, or we can legislate to fill the gaps.
I’m a proponent of the latter approach. If we’re going to be tetchy about unelected judges making value judgements, then we need to make the possible interpretations of legislation more restrictive.
That essentially seems to be what Jack Straw is doing; accordingly, I don’t see the need to step up criticism of judges, unless it is on a purely legal basis and against the results of their decisions with respect to the time that the elected must take to sort things out!
I must confess that I have not read any report of the case (I’m not sure of its name or citation). However, the impression that I got from Jack Straw was that the judges refused to allow their own previous precedents to stand on the twin bases that a) they themselves were without strong enough legal force and b) such matters should be matters for the elected legislature.
Though the decision might be illogical to the external observer, and annoying to all concerned, if that really is the basis for it then I cannot fault it.
Miller 2.0 was absolutely right in his comments ,Although I do wonder when Dwanyne Brrokes ( Who was with Stephen Lawrence when he was killed)in his criticism of revealing witnesses and his support for the Idea of going back to witness anominity could be so openly critical of id cards and 42 days
Thanks Miller, interesting and valuable points again. I certainly hope I’m not simply adopting a permanently critical posture, since that would serve little purpose beyond self satisfaction at being able to point to judicial failings without suggesting a better alternative (in fairness I can see that my initial piece might have slightly given that impression). Of course, it’s perfectly reasonable to expect legislators to fill in the gaps and provide judges with the necessary statutory materials to deal with the problem. The difficulty here is that this decision goes beyond the judges saying ‘we need some statutory reinforcement here, over to you, Parliament, to provide some’. They’ve concluded, in the process ovveruling the Court of Appeal which held the opposite, that witness anonymity breaches ECHR. That , of course, is a finding that carries with it a host of very serious political implications, of which the Law Lords will be fully aware, since they are certainly not political naifs (remember Lord Hutton?). Straw may try to rush through some legislation on this shortly, but if he does so he will almost certainly find himself on the receiving end of a Convention rights challenge. (and yes a rejoinder to this is that it’s this government which signed us up to the HRA, and you take the rough with the smooth; and I suppose I’m basically rather uncomfortable with the degree of judicial discretion inherent in Bills of Rights. I realise, of course, that HRA is not a Bill of Rights; it preserves Parliamentary sovereignty. But in practice it’s extremely difficult to exercise that sovereignty where it involves derogation).
An interesting point which some one else has made (against me) is that this case involves balancing the rights of one poor, black person (the accused) against the rights of another poor, black person (the victim). So the case could not, by definition , involve the type of class (or for that matter racial or sexual) bias which Griffith identified in decisions on trade unions. Having read Griffith, what do you reckon to that? I suppose my answer would pray in aid the recent US Supreme Court decision on gun laws. A decision which will no doubt be welcomed by inner city drug dealers, but which is deeply damaging to inner city communities as they try to fight back against drug and gun crime. Two recent decisions – one in the US on gun laws, one in the UK on witness anonymity – depriving inner city communities of the tools they need to protect their citizens.
And going back to your original point, yes in theory both can be ovveruled- all that the US needs to do to overrule the Surpeme Court decision on gun laws is to pass a constitutional amendment; all we need to do is derogate from ECHR. Easy! Not.
But Jack – it’s possible for any one of us to have different views on different aspects of state interference. I was opposed to 42 days; I am a little dubious about ID cards; I strongly support the DNA database. Clearly, I support witness anonymity. Miller talked about the liberal/authoritarian divide. It’s possible, is it not, to consider each of these issues on their merits (or lack thereof) rather than being expected to answer to every issue in the same way irrespective of the evidence?
The Dna dateabase ,there are cases were the judicairy finds its not int eh public interest to find some one guitly ie, they commited fraud but admitteedm it and were given community work or paid it back, they are not proven as in scotland or the victim withdrawls the allegation they were clearly gui;ty but the shame of everyone knowing they did the but the victim feels its not worth them being convicted as they have learnt there lesson. all of who would have there dna on database,
youv’e got to remember in the days before electric fingerprints if some one ws charged on teh basis of the police having there fingerprints already this couldn’t be released in court, and courts being able to reveal former convictions (exluding the fact that ourt judiciary is based on the presumption of innocence) was another example of this
hypathetically a sex offender is freed as there is no forensic evindence they did it they go on to commit another crime and the police had theyre dna for a crime they wern’t charged with but destroyed it as they were innocent of the former crime.
Now I know you may say there are many people who get off of crime cos there’s not enough evidence and they ho on to commit further crimes but if you are no guilty in the eyes of the law you dna is your own privacy you may be cleared of an original crime the police may not have enough evidence to commit you for another crime but if you are innocent in terms of the law it is your right to privacy about your dna
as Form my comment that people are quick to criticise one extra human right Ie suspects being told the people making accusations against thems identity but not others Ie, We were quick tocall for the abolition of double jeopardy so stephen lawrences suspected killers could face a fetrial but teh same people calling for that were quick to say those cleared of killing Pc Keith balckelock shouldn’t face a retrialif as teh police believe they got the right people all along