THE LONG ARM OF THE LAW

Boris Johnson argues that judges

are acting like frustrated politicians, which is what some of them very well may be

THERE IS NO mistaking the anger in the minister's voice as he considers the role of the judges. 'They're socially corrupt!' he snaps; and he does not merely mean Lord Justice Nolan or Lord Justice Scott, who are now sitting in assize over the minister and the entire political establishment. That Parliament has given up the right to regu- late its own affairs for the first time in 800 years is, he says, a self-inflicted wound, or, rather, a wound inflicted by Mr Major. No, the object of the minister's wrath is the whole cohort of men and women in full- bottomed wigs.

Ministers believe they have a grievance against a judiciary commonly accepted to be the most liberal in history, and who are making increasing use of prerogatives only acquired since the late 1970s. 'It is a disas- ter,' says Sir Ivan Lawrence QC, the loyal- ist chairman of the Commons Home Affairs Select Committee, who is himself a recorder, or junior judge. 'We've opened up a whole field and made it impossible for the Government to take any decision with- out being challenged.'

The alleged disaster in question is the process of judicial review, which is demon- strably transforming the British constitu- tion. This is the system by which Douglas Hurd was told he did wrong in awarding £234 million to Malaysia to build the Per- gau dam, aid which turned out to be tied to the sale of arms; and his suffering has been nothing compared to that of Mr Michael Howard. When the Home Secretary tried to save money for the taxpayer by reducing the scope of the Criminal Injuries Compen- sation Scheme, set to soar from £40 million in 1987 to £500 million in 2000, the Court of Appeal said that he had exceeded his powers. He's since been told that he erred in trying to keep a couple of Kashmiri mur- derers in jail. Now he faces yet another judicial review over whether or not to grant citizenship to the Fayed brothers.

What is the point of being Her Majesty's Secretary of State for Home Affairs, he may be asking himself, if he cannot decide whether or not Mohamed Fayed deserves a passport? The judges have recently decided that British Rail was over-hasty in closing the absurd 'deerstalker express' to the Highlands. The judges have decided that the BBC may not broadcast an interview with a politician (J. Major) in the run-up to a local election. Now Lord Justice Simon Brown has warned that the day is almost at hand when the judges will force the gener- als to welcome homosexuals into the ranks.

According to the politicians, this is all outrageous hubris. The judges are substi- tuting their own discretion for the discre- tion of ministers, they say. According to the judges, the ministers are on to something. It is just that they do not regard their own behaviour as outrageous. Sir Stephen Sed- ley, of the High Court, has recently hailed `a new culture of judicial assertiveness to compensate for and in places repair the dysfunctions of the democratic process'. Sir Stephen does not hide his political opin- ions: he is an acknowledged left-winger, and regularly held up in evidence of the catholicity of the appointments by Lord Mackay of Clashfern, the Lord Chancellor. But then listen to the obiter dicta of Lord Justice Harry Woolf.

`It is one of the strengths of the common law that it enables the courts to vary the extent of their intervention to suit current trends. By this means they are able to maintain the delicate balance of a demo- cratic society.' Lord Justice Woolf seems to have hit upon a novel constitutional propo- sition. He implies that when a political party has been in office for too long, and the culture of opposition has declined, then it is up to the judges to volunteer resis- tance. In Lord Justice Woolf s view, we can infer, it is perfectly proper for a judge to be political; and he has good historical sup- port for the idea.

One thinks of those ancient Hebrews: Samson, who 'judged in Israel 20 years', and others such as Othniel, Gideon, Debo- rah and Shamgar. According to biblical scholars, these men and women combined leadership with a primitive judicial func- tion. Perhaps it is not too facetious to point out that, according to certain conceptions of the future, there will be a cyclical re- integration of the judiciary and the execu- tive. On 28 July opens a film called Judge Dredd, featuring a helmeted and leather- clad man on a motorbike who combines the functions of politician, judge, jury and executioner, and who cries to his suspects, before he blows them away, 'I am the law and you better believe it!'

And yet I thought it was meant to be one of the beauties of this our intermediate age of parliamentary democracy, between Sam- son's jawbone-of-an-ass and Judge Dredd's magnum, that judges kept out of politics. Pace Judges Woolf and Sedley, I thought this was for their own good, since it pre- served them from the public opprobrium that attaches to those who espouse one side of the political debate or the other. It was also meant to be right, since judges are not elected, and therefore not politically accountable.

In trying to explain the curious ubiquity of judges in current political life, lawyers will make a number of points. After 15 years of Tory rule, the judiciary is per- ceived as one part of the establishment that is relatively untainted. One may quibble with the way £4 million of taxpayers' money is spent on the 32 lodges for High Court Judges, complete with butlers, cooks, and parlour-maids, and which, because of the circuit system, the judges only occupy for half a year; and one can point out that this costs us all £10,897 per judge, per week. One can point out that judges are prey to normal human feelings: they have been known to pinch bottoms, kick taxis and require the use of a breathalyser. Some of them in the past have been subject to less than normal feelings, for instance ejaculat- ing when putting on the black cap. But people do not generally feel that judges are corrupt.

That is why, since Denning in 1963 and before, politicians have reached for a judge in moments of difficulty. That is why Mr Major has inflicted Nolan and Scott on British politicians. Their residual image of incorruptibility means that they are unlike- ly, at least in the short term, to be vulnera- ble to a backlash for chastising elected politicians, who are held in deep distrust.

And perhaps the judges are not wholly to blame themselves for the growth in judicial review. Partly this is a function of the great and increasing volume of legislation, and the vast 40,000-strong band of quangos whose decisions must be regulated. Partly, says David Pannick QC, the phenomenon may relate to ministers' new-found willing- ness to rush a bill on to the statute book, even if it risks being challenged by the courts; and partly it may relate to slipshod drafting by Government lawyers. Some lawyers also blame ministers for the delib- erate absence of detail in legislation. Take the Jobseekers Bill, now going through the Lords, which has been condemned by the Tory-dominated Lords Select Committee on Delegated Powers. Under the terms of the Bill, it is entirely up to the minister to decide, for instance, what is meant by `available for employment' or 'actively seeking employment'.

No doubt Mr Lilley can be trusted to use his powers in the admirable cause of frus- trating scroungers. But if the absence of detail in statute gives ministers scope to do as they please, with only the most formal parliamentary scrutiny, it also gives judges scope to make their own interpretations of the law. All these pleas may be entered in mitigation for the new 'activist' judges. None of them, though, quite explains the rise in judicial review from 160 applications in 1974 to 2,900 last year.

Leaving aside' the point that citizens, egged on by special interest groups, are much more aware of the possibility of review, I think I know the fundamental explanation for the growing war between judges and politicians. I conceive that at the root of it all is money. First, as Michael Beloff QC has said, 'Judicial review has become a paying proposition for the pro- fession.' But I think there is a more subtle way in which money is the central corrupting factor in the politicising of the judiciary.

As one eminent QC puts the problem: `There has been a change in the balance between the quality of the legislature and the quality of the judiciary.' In other words, he says, fewer of the brightest young barris- ters are now contemplating a political career. Some of the old guard still do both. Nick Budgen manages to spend the morn- ing in chambers before knocking out an article for the Guardian and going to the House of Commons. Michael Howard was once a sharp planning lawyer, and Leon Brittan was your man for libel. But the days of F.E. Smith, of the great lawyer-politi- cians, are gone.

Partly this is because the lawyers cannot face the personal exposure entailed. As the QC puts it, `I don't want to spend my life with people asking me questions about every strange woman I'm seen with.' Main- ly, though, I suspect, it is because the finan- cial rewards for staying in their pleasant, Oxbridge-college-style inns are irresistible next to the pathetic salaries of MPs. And so, having been raised to the bench, and having made their pile as barristers, I sug- gest that they are trying to have their cake and eat it. They rejoice in the fancy new grounds for judicial review being imported from Europe — whether a measure is `pro- portionate', whether it conforms to 'legiti- mate expectation' — and, yes, some of them relish the chance to engage in the political process. For these judges are no longer all snaggle-toothed Wykehamists who think Gazza is a pop star.

A new generation is coming up, and what especially enrages the Government is that their judgments tend to go in a liberal direction: if these are frustrated politicians, they sometimes seem to be frustrated Labour politicians. Though he was over- ruled by his colleagues, Lord Mustill, a comparatively tender 63, thought it reason- able that a group of sado-masochists should nail each others' genitals to the floor, provided they were over 21 and did it with consent. Some judges naturally say that their recent bouts of opinionated liber- alism are nothing to do with buried politi- cal feelings. They say this is as it were passive activism, forced upon them by the tendency of authoritarian Tory ministers to abuse their powers. But that requires us to believe that John Major's Government, with its feeble majority, its inability even to privatise the Post Office, is more arrogant and dictatorial than previous governments.

It will not quite wash. As Pannick says of the question of homosexuals in the mili- tary, 20 years ago this question would have been laughed out of court. 'They would have said this is not something the judges are competent to deal with.' Nowadays some of them — not all of them — do feel that it is their place to pronounce on politi- cal questions.

In the short term, the politicians can do nothing. There is no sensible means of restricting judicial review, without impugn- ing the independence of the judiciary. In the long term, if they continue in their pre- sent mood, the judges may tarnish their precious badge of political impartiality. That might well be a disaster. If there is a solution, it lies in reducing the disparity in earnings between the legal and political professions; and, to that end, the judges should do their proper job and mount a full-blooded assault on legal fees.

Don't you think the oak panelling's gone far enough, LI?'