Who will judge the judges?

From The Spectator July 10 2010

by Peter Jones

My Ancient & Modern column has banged on long enough about the glories of the only democracy the world has ever known: that of Classical Athens, where the citizens (Athenian males over 18) were the legislature, making all political decisions by a show of hands after public debate in the Assembly. However, those same citizens also sat in judgement in the courts, where there were no judges to tell them what they could and could not decide. So there was no separation of powers: Athenian citizens, being sovereign, could make and unmake laws at whim, if they could be persuaded so to do (and, on one famous occasion, they were, though they soon repented of it).

Since we are not a democracy, this separation of powers between government/parliament and the judiciary lies at the very heart of our system, a bulwark against the power of the oligarchic government elite that rules us.

The problem, however, is that the judiciary is an oligarchic elite as well, and not even an elected one. It is accountable to no one but itself, and a couple of recent cases as reported in the press—I stress that point—raises the question whether the judiciary in the appeal courts is serving the public properly.

In a recent judgment on a test case involving four ‘individuals’, the Supreme Court ruled that suspected terrorists whose assets had been frozen should have them returned immediately because government had no parliamentary authority to confiscate them. So government asked the Supremes to suspend the implementation of their decision, until it had got a law on the statute books. By a majority of six to one, the Supremes rejected the request: the Supreme Court ‘should not lend itself to a procedure that is designed to obfuscate the effects of its judgment’.

But Lord Hope, the lone dissenter, pointed out that, since the European Court in a similar case had itself delayed implementation of its decision for three months, there would be no difficulty in the Supreme Court doing the same. ‘This is not simply a matter of meeting international obligations,’ Hope added. ‘The national interest in resisting threats to our security is just as important.’ Infinitely more important, an Athenian would say. Now, there may be a perfectly comprehensible reason for the Supremes’ six-one decision. But this is how it was reported—and there was no explanation, no come-back. Whose side were those judges on? It does not look as if it was ours.

Second example. Following the diktat of the European Court, Law Lords ruled that ‘control orders’ were illegal, because they allowed terrorist suspects to be placed under curfew without the evidence against them being tested in court. A Law Lord commented ‘The government has a responsibility for the protection of the lives and wellbeing of those who live in this country… The duty of the courts, however, is not a duty to protect the lives of citizens. It is a duty to apply the law.’ salus populi suprema lex esto said Cicero: ‘let the safety/security/well-being of the people be the overriding law’. It looks as if this is the last thing the appeal court had in mind.

Now maybe the judgement was misleadingly reported. One rather hopes it was. Further, it takes two to tango—three, counting the EU—and I have no doubt government must also shoulder its share of the blame. But, on any grounds, the public was owed an explanation, whether as corrective or justification. None was forthcoming, and in his recent Leonard Cohen lecture, the Master of the Rolls explained why. Rejecting the chance to speak on terrorism, he said: ‘It was very tempting—the issues to which torture and terrorism give rise are as fascinating legally and intellectually as they are important politically and morally. But I decided that it would be inappropriate to do so. Judges should be very wary about discussing their recent decisions.’

So here is a top lawyer saying that certain issues are ‘highly sensitive’ and ‘as fascinating legally and intellectually as they are important politically and morally’—and therefore he must not publicly discuss them? I would have thought that was precisely the reason why he should publicly discuss them. Or is it that we, the public, just don’t count? All this has nothing to do with us? That we are not worth persuading? For that is what it looks like: an elite, accountable only to itself, guarding the sacred mystery from the struggling peasantry.

Now whatever one thinks of Athenian democracy, it had at least three things going for it: first, it did not do unaccountable elites; second, by definition, citizens, Assembly and courts could not but share a sense of common purpose; and third, public debate was at the democracy’s very heart because persuasion of the people in Assembly and courts was the only way that anything could be done. Demand for a reasoned account (logos) was a driving force for change in all areas of Athenian life—philosophical, artistic and intellectual as well as political and legal—and partly accounts for the astonishing cultural advances they made. Yet for the Master of Rolls, this is the last thing our judiciary should be doing.

There is a serious democratic deficit here: a deficit in persuasive engagement with the public. First, far from giving the impression that governmental and judicial elites are working together in all our interests, the appeal court seems to get its thrills from point-scoring against the government on matters of great public concern. Is it really impossible to reconcile vital judicial independence with the public promotion of a sense that, on the Athenian model, there is a community of interest between government, judiciary and us, that we are all in this together?

Second, while the judiciary does indeed publish its detailed judgements on every case, it seems indifferent either to giving a suitably comprehensible account of these to the general public, or even correcting distortions of them put about by the fourth estate. This is a dereliction of its duty. There are few things more important than a people’s confidence in the good sense of its legal system. If the appeal judges wish to bring themselves into public disrepute, they are going the right way about it.

Fiat iustitia, ruat coelum (1602), lawyers intone: ‘let justice be done, though the heavens fall in’. But if the consequence of justice being done is that the heavens do in fact fall in, on whom do the heavens fall? Us. That’s whom. It is about time the appeal judiciary took a look at its elite oligarchic self and asked: whom is its justice serving? The people? Or simply itself? And is that really what it is for?

This is a shortened version of Peter Jones’ recent address to an Inner Temple conference on democracy and the law.