Protecting the rule of law doesn't mean rule by lawyers
Only a generation or so ago, the worlds of law and politics were, if not entirely compatible, more connected with each other. Lawyer-politicians were a more common feature of public life, and the Lord Chancellor, who was a member of all three branches of the constitution, acted as a lynchpin, resolving tensions, speaking up for the judiciary whenever necessary and embodying our 'checks and balances' constitution. Judicial Review of administrative action was focused on errors in the process, rather than the underlying policy itself. The independence of the judiciary and the legal profession was unquestioned, but the hidden wiring of our system worked well.
The world has changed much since then, with the last Labour government playing a central role in tearing apart this careful relationship. The Human Rights Act, which came into force twenty-five years ago, helped to entrench an approach to the European Convention that has increasingly drawn judges into the political arena.
Then, Labour introduced its Constitutional Reform Act in 2005, and, in the name of separation of powers, the Judicial Committee left the House of Lords, becoming a Supreme Court. As such, the Lord Chancellor's role was downgraded, and the old principle of comity trampled upon. Instead of understanding, suspicion, remoteness and a degree of ignorance has filled the void.
Accompanying all this constitutional change has, in my opinion, been a cultural change. Lawyers like me who decided to go into politics to legislate and to develop policy were seen as oddities, as opposed to those who focused solely on a legal career. Instead of service in Parliament being viewed as part of the development of legal and indeed judicial knowledge, suspicion and contempt of the political process itself crept in.
In Parliament, some lawyers took up a campaigning stance, identifying with their clients rather than leaving their politics at the door of the office, chambers or the courtroom. The continuous nature of politics has meant a reduction in time and space to understand or examine judicial decisions, with their nuance and carefully reasoned explanations.
Let's get things straight. Firstly, it is never wise for a politician to wade into a debate about a particular court judgement without reading and understanding it first. As is so often the case, media reports about cases get key things wrong. Having read the immigration appeal tribunal judgement in question, I share and agree with the Lady Chief Justice's concerns. Judges cannot answer back unlike other figures in public life, and when inaccurate or highly personal attacks are made against them, they should be defended by both the LCJ and the Lord Chancellor.
Secondly, it is the case that judges are public figures, who make decisions every day in public courts. The principle of Open Justice means that we are entitled to know who is making these decisions and why. It also follows that discussion and indeed criticism of their judgements is not only legitimate but essential. Judges cannot expect to be immune from any comment about their work and politicians should be able to do this, as I and others have done on previous occasions.
But there is something else going on here. As our public discourse continues to coarsen, mainly thanks to social media, judges are not immune. There is a wellspring of justifiable judicial concern and anxiety about the threats and abuse that increasingly are being hurled at judges. As Head of the Judiciary, the Lady Chief Justice has an obligation to act to defend her colleagues. This isn't just about the safety of our judges but is also about their independence.
But we must be clear that the rule of law does not mean rule of lawyers. The supremacy of Parliament means that it has the power to change the effect of judicial decisions through legislation, with judicial oversight on the reverse side of the coin serving as a central political principle.
I very much hope that the Lady Chief Justice and Lord Chancellor quickly find a way forward that reverses the 'continental drift' of law and politics further away from each other.
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