Few would challenge the necessity, in a well-functioning democracy, of having a respected, independent, incorruptible, diverse and high-quality judiciary. But do we really want to live in a world that is run by judges and lawyers? I ask the question rhetorically, for to the overwhelming bulk of citizens, including many lawyers I know, the answer is obvious: a decisive no.
The reality in the modern age is nonetheless one of progressive judicial creep and over-reach. The lawyers have in essence become more powerful than the parliamentarians, so much so that they no longer seek merely to interpret the law, but frequently to make it, too.
Nowhere is the phenomenon more apparent than in the institutions of the European Union, where a lack of democratic accountability has created a lawyers’ paradise. In all member states, the EU has made the executive and the judiciary more powerful and parliaments less so. Rulings by the European Court of Justice (ECJ) are final and cannot be overturned either by national courts or parliaments. Desire to escape this form of judicial coercion provides one of the main intellectual justifications for Brexit. This is why Theresa May, UK’s Prime Minister, has made rejection of ECJ jurisdiction a red-line issue in the Brexit negotiations. Since her humiliation in the polls, however, the red line has become ever more blurred.
The recent “position paper” on the issue was no such thing, it merely presented a series of options. Even so, the implication is that the ECJ’s rule will remain absolute during the “transition” period after Brexit, and that in achieving the desired “deep and special” partnership with the EU, the court would retain a significant role thereafter.
If this is to be the case, voters will no doubt ask what the purpose of Brexit is in the first place. To be bound by the obligations of the EU, but with no say in deciding them, would leave the UK in a worse position than it is in now — or as Barry Gardiner, Labour’s trade spokesman, has put it, reduced to little more than “vassal state” status.
Where precisely the government thinks the trade-off lies between market access and judicial sovereignty is still about as clear as mud. About 40 per cent of Britain’s laws are today said to have come from Europe in some shape or form, and what’s more, there is very little we can do to challenge them.
When law is set to encompass 28 different member states, it should not altogether surprise that it cannot entirely satisfy any of them. The UK’s running battle with the EU over the “working time directive” is a case study in the subversion of the national interest to the supposed demands of the single market.
But what of our own system? Are not our own judges equally guilty of overreach? Rule by the courts, rather than by elected representatives, is in some respects as much a home-grown problem as an EU one. Repeated surveys have found far greater public trust in the integrity, independence and competence of the national judiciary in the UK than in much of the rest of Europe. Indeed, one of the reasons public support for the EU is so much higher outside the UK is that across large swathes of Europe voters tend to trust European institutions — including the ECJ — more than their own to deliver justice. Yet this hardly makes the UK system perfect; like the rest of the developed world, we seem to have become a country governed as much by our courts as by our elected MPs and government.
Democracy has fallen victim to a kind of judicial dictatorship. This might not matter so much if we could be sure that each case is determined by the law and the evidence in a politically neutral way, and not the predilections of individual judges. But we cannot. When judges essentially appoint themselves, as they do in the UK, the system becomes a closed shop; a particular view of the way the world should be becomes embedded.
Once we associated the judiciary with stuffed shirts and “old-fashioned” prejudices. Today it is perhaps the opposite phenomenon we observe — an unduly liberal judiciary. A new elite, or establishment, has emerged, which interprets the law in its own image.
Trust in our legal system depends on its independence; few would want to switch to the system of elected or politically appointed judges we see in other parts of the world. Yet it was plainly a mistake to remove all political involvement in the process, as occurred under the last Labour Government when the Lord Chancellor was basically stripped of any say in appointments. Either this role should be restored, or, as suggested in a recent speech by Baroness Hale, the incoming president of the Supreme Court, a senior member of the government and one of the opposition should serve on the appointments committee. The current system can hardly be described as broken and discredited, but judges have become much too powerful; they should be dethroned and made more democratically accountable.
— The Telegraph Group Limited, London 2017
Jeremy Warner, assistant editor of The Daily Telegraph, is one of Britain’s leading business and economics commentators.
