Date: Wed, 25 Mar 1998 11:06:46 +0000
From: James Heartfield <James-AT-heartfield.demon.co.uk>
Subject: M-TH: Judges rule



Reproduced from Living Marxism issue 89, April 1996 --------------------
-------------------------------------------------------

Judges rule

As the judiciary takes on the government, James Heartfield asks when
exactly did judges become the champions of the people?

How things have changed for Britain's judiciary. A few years ago the
criminal justice system was in tatters and m'luds were in disrepute.
Judges were found to have presided over miscarriages of justice in the
cases of the Birmingham Six, the Guildford Four and Judith Ward, where
Irish people spent up to 17 years in jail for bombings they had nothing
to do with. Others, too, were shown to have been jailed by judges who
nodded through police frame-ups: cases like those of Stefan Kiszko, a
mentally impaired man falsely imprisoned for a child rape and murder;
Winston Silcott, sentenced to life on no evidence for killing PC
Blakelock at Broadwater Farm, and many more convictions which were only
overturned after the collapse of the corrupt West Midlands Serious Crime
squad.

Only a few years ago Lord Denning reflected that if the death penalty
had been in place there would have been no public outcry over the
Birmingham Six or Guildford Four. Judges were criticised, too, for their
attitude to women in rape trials, which often betrayed the belief that
the victim 'was asking for it', as Justice Melford-Stevenson put it at
the Old Bailey in 1976.

Today, however, the role of the judges in miscarriages of justice is
barely remarked upon, as the judiciary pretends to a new role as the
champion of the oppressed and the enemy of injustice. Today's judges are
the scourge of the politicians and, supposedly, the defenders of the
rights of the people. In a series of high-level inquiries judges have
acted to curb what are seen as the excesses of government power and
parliamentary corruption.

In October 1994 John Major established the Nolan Committee on Standards
in Public Life after a series of scandals involving Members of
Parliament. In particular, the committee was a response to the 'cash-
for-questions' scandal, when Tory MPs were shown to have acted on behalf
of lobbying companies, laying down questions in parliament at the behest
of private interests.

Lord Nolan and his colleagues 'quite deliberately' went beyond their
terms of reference to set down a far-reaching set of proposals about how
MPs' behaviour should be regulated, including the establishment of a
Parliamentary Commissioner for Standards (see P Hennessy, The Hidden
Wiring, p181, reviewed on page 43).

Judging politicians

In February, the commission headed by Lord Justice Scott reported on the
'arms-to-Iraq' scandal, where, it was alleged, ministers had secretly
relaxed guidelines on the sale of goods to Iraq, while at the same time
telling parliament that no such adjustment had been made. Furthermore,
it was alleged, ministers had allowed the directors of the Matrix-
Churchill company to go to trial for exporting arms-making equipment to
Iraq, when they were in full knowledge of the nature of the exports,
even going so far as to issue Public Immunity certificates to prevent
the judge in the case revealing the extent of ministerial culpability.
Much to the consternation of the government's critics, Scott's report
fell short of a full condemnation of the ministers involved, accepting
that they did not knowingly deceive the House of Commons.

However, both Nolan and Scott represent an important shift in the
relationship between parliament and the judiciary. For the first time in
years, the judges were telling the politicians what they could and could
not do. The balance of power between the elected legislature of MPs and
the appointed judiciary was shifting.

Further evidence of the changes has come in a series of high-profile
conflicts between the judges and the Home Secretary Michael Howard. The
decision by the Chief Immigration Adjudicator, Judge David Pearl, to
overturn the deportation order issued against Saudi dissident Mohammed
Al Mas'ari is only the latest rebuff for the Home Secretary. In fact,
this defeat is Howard's ninth at the hands of the courts in two years.

In March the Lord Chief Justice, Lord Taylor, openly attacked a plan by
the Home Secretary for tougher sentencing. According to Lord Taylor, the
imposition of fixed life sentences for a second violent offence would
lead to injustice and undermine the deterrence of the law. Clearly a
Home Secretary who cannot bank on the support of his own Chief Justice
is not in control of the criminal justice system. A Home Secretary who
cannot serve a deportation order without it being overturned by a judge
is not in control of immigration law. And, most importantly, a
government that defers to justices Nolan and Scott in the matter of
parliamentary conduct is not in control of parliament. What is going on
between the judges and the politicians?

On the face of things it appears that the increased willingness of the
judges to challenge the government indicates their desire to stand up
for liberty and justice. In each case of a conflict between the judges
and the politicians it appears that it is the judges who stand for fair
play while the politicians are forcing through ever-more draconian
measures, from fixed sentences to summary deportations, as well as lying
to the public and parliament. It is a traditional role that the judges
have aspired to in the past, to defend liberty against the encroaching
power of the state. And it is a role that has made them more popular
than they have been for a long time, as the government's critics look to
the judiciary as the last bastion of freedom against a corrupt and
dictatorial government.

Conflicts emerge

But, beneath the surface, things are very different. The conflict
between the judiciary and the government is not about justice in
society, but is part of an internal struggle for authority within the
British establishment and the state. And, far from being a guarantee of
liberty, the encroachment of judicial power on the authority of
parliament can be seen as a challenge to the right of people to exercise
democratic control over the decisions that affect their lives.

The main motivating force behind the increased willingness of the judges
to interfere in government decisions has little to do with defending our
liberties. On the contrary, the strained relations are a consequence of
the problems which the establishment is having today upholding its
authority over society. The different wings of the state--the judiciary,
the government, parliament and the civil service are all pulling in
different directions. The incoherence of the British state means that
differences that once would have been settled in private are now likely
to spin out of control.

Toff

In the past, judges like the Lords Nolan and Taylor, or Sir Richard
Scott, would not have been likely to break ranks with a Tory cabinet
over small matters like misleading parliament and the public or doing
dodgy arms deals or deporting Arabs. In fact, judges have long been
attuned to the need of the establishment to back up capitalist
interests, even when that means riding roughshod over other people's
liberties. Sir Richard Scott's background is indicative of the elite
character of Britain's judges and their willingness to serve that elite.

Richard Scott lists his interests as fox-hunting as well as his better
known pursuit of cycling. The son of a Gurkha colonel, he was born into
the British Empire, in the foothills of the Himalayas, and went on to be
educated at Cape Town University and Cambridge University. He became a
chancery judge in 1983, when his reputation was far from that of a
critic of the ruling classes. In 1984, the Guardian newspaper leaked the
siting of American cruise missiles in Britain, and was challenged to
return the documents to the Ministry of Defence, so that the identity of
the source could be discovered. It was Sir Richard Scott who ordered
that the papers be returned, so exposing civil servant Sarah Tisdall,
who was imprisoned for six months. It is ironic that today Scott and his
colleague Nolan have taken a stand on the need to inform parliament and
the public. Sarah Tisdall was afforded no such protection when she blew
the whistle on the way that the Thatcher government was misleading
parliament over its plans for Cruise. Scott further showed his
willingness to defend the interests of government and business in 1985
when he granted an injunction against 'mass-picketing' in South Wales
during that year's miners' strike. Hardly a champion of the people.

If the judges are unlikely critics of government, it should also be said
that the politicians' activities are hardly out of the ordinary. Cash-
for-questions, after all, is only a more explicit version of the close
links between the Conservative Party and big business that have been its
hallmark. Why did anyone think that companies like Hansen's and British
Airways were bankrolling the Tories to the tune of millions of pounds if
it was not to seek influence? Nor for that matter is it a great
departure from the norm for government ministers to support the British
arms industry, or indeed to curry favour with the Saudi government by
silencing its critics. Margaret Thatcher used to call it 'batting for
Britain', something she was proud of, and by no means a case for
inquiries or reports.

But what was once acceptable government practice today strikes many
people as grotesque corruption and intrigue. This change of mood is not
to do with any specific action of the government itself, but rather is a
consequence of the disintegration of the political system through which
the state used to cohere and pursue the interests of British
capitalists.

Parliament sovereign

The government's claim to unchallenged authority has traditionally
rested upon its popular mandate, which had to be established through the
party system of debate and elections. No other power could challenge a
cabinet claiming to act upon 'the will of the people'. In the
constitutional crisis of 1909-11, the Liberal prime minister Herbert
Asquith faced down the House of Lords which had refused to pass his
chancellor Lloyd George's 'people's budget'. The Lords' veto on finance
bills was overturned after Asquith fought an election on the issue. The
supremacy of the Commons over the Lords was sanctified by the popular
mandate, clarifying the hierarchy of power within the state itself for
the next 80 years. (Notably, while the Liberal government was
intimidating the Lords in the name of the people, it was also sending in
troops to quell the South Wales miners and anchoring warships at the
mouth of the Mersey to cow strikers in Liverpool--demonstrating the
limits of popular power in parliament.)

The authority of governments has since rested on their claim to an
electoral mandate, putting the executive beyond challenge. But in recent
years the claim of parliament and the politicians to popular support has
become less plausible, and their authority, in consequence, more open to
question. The political system has suffered a precipitate decline in
public legitimacy, and both of the major parties have experienced a
crisis of identity, leaving them bereft of effective policies. They have
lost touch with their campaigning bases simultaneously. The government
is deeply unpopular, yet the opposition does not enjoy serious public
enthusiasm either. Any change in government is unlikely to represent a
decisive movement of popular support, but instead would be part of the
anti-incumbency sentiment that has turned out ruling parties in recent
elections from Spain to Australia.

Without the cover of popular support and legitimacy, the dirty business
of capitalist government sticks out like a sore thumb. So the
consultancies that MPs have enjoyed for years suddenly make parliament
look like what the Italians call 'tangentopoli'--the city of bribes. And
the unexceptional law-and-order measures that Michael Howard has
introduced can suddenly look draconian and self-serving, designed to
secure the core of Tory support rather than reaching out to the country.

The judiciary is particularly sensitive to the loss of authority
suffered by the government and the political system. As that part of the
state machinery that is entrusted with maintaining order, the judges are
aghast at the extent to which the government has exposed the grubby
shenanigans of capitalist rule. Instinctively, they are stepping in to
shore up the legitimacy of the state--even if that means challenging the
government of the day as Lord Chief Justice Taylor et al have done by
attacking Howard.

It is the collapsing authority of the elected legislature and the
government that drives the conflict between the judges and the
politicians. The judges abhor a vacuum, and it is the power vacuum left
by parliament that they are rushing to fill. Where uncertainty prevails,
the judges want to see the rule of law restored to its former standing.
Like the police chiefs, the judges, once fans of the Tories' law-and-
order strategy, are now less happy to be constantly in the front line of
the government's increasingly hysterical clamp downs. What they fear is
that their legitimacy will be damaged alongside the government's, and so
they are trying to establish some distance between them.

Degrading democracy

Most of the pretexts for the judicial challenge to parliament seem
commonsensical. Arbitrary sentences and deportations, bribes and lies
are hardly a sure basis on which to defend parliamentary sovereignty.
Nonetheless, the sum total of the judges' activities is a further
degradation of democracy, not a restoration of it. Politicians hold
little favour with the public right now, but at least they are elected,
not appointed by the Crown with the advice of the Chief Justice. If a
ruling party offends you, you still have the right to throw it out of
office. No such right obtains when it is the judges who are making the
law.

When the judiciary acts, it does not do so on behalf of liberty, but to
shore up the authoritarian power of the state. The fact that this
parliament is a sorry apology for a functioning democratic process
should not blind us to the consequences of a greater role for judges in
deciding the course of government. The principle of government by the
people is even further dissipated if decisions are made by bewigged
Lords drawn from the ruling classes. All the judges' authority stems
from the dead weight of elitist tradition, and all their criticisms are
ranged against the presumed venality of mere elected politicians.

In the past, judges have sought to curb parliament, too. In a lecture in
1977, talking about a turbulent strike at the firm Grunwick's, Lord
Denning bemoaned the Labour government's unwillingness to support the
rule of law--which meant in practice breaking the strike--and boasted
that 'by and large I hope we are keeping the government in order'
(quoted in P Hain, Political Trials in Britain, 1984). In the caring
nineties the judges prefer to be seen to be acting on behalf of wronged
deportees than strike-breaking businessmen, but the underlying aim is
the same. Where the authority of the state is called into question, the
judges have little respect for the democratically elected politicians.
On the whole, they see them as chancers and oiks, who are too willing to
set aside the accumulated legitimacy of the powers that be, in favour of
mere electoral gain.

Behind the judges' contempt for politicians is a contempt for the
electorate. They do not trust ordinary people to decide the major
questions of the day, any more than they trust the juries to judge the
cases in their courts without hectoring and cajoling them.
Instinctively, the judges mistrust the political process for its
inconstancy and surprises. At root that mistrust is a mistrust of
popular decision-making.

Accountable to none

On the other end of the scale, the problem is perhaps worse. Years of
frustration with the politicians have led many people to invest their
hopes in the great and the good to come to a more trustworthy
conclusion. These days the response to an unfavourable policy is more
likely to be a call for a judicial review--an appeal to a judge to rule
against the government--than a campaign to galvanise popular resistance
to the new measure.

But calling on the judges to restrain the politicians is a disaster for
real accountability. Not surprisingly, the judges respond favourably
when asked to step into the fray, and will perhaps even talk about
government accountability and so on. But the consequence of this process
is the opposite of popular accountability. It leads only to the greater
subordination of the political process to the accounting of the
appointed judges.

What seems to be a mechanism for some kind of popular pressure on
government is actually the very opposite. The greater role of the judges
only formalises the exclusion of the people from power. Rather than
telling the authorities what they should be doing, the rest of us are
reduced to the role of spectators, cheering on our favourite stars.
Instead of being actors in our own right, seeking to affect the
political process in our own favour, we hand the initiative to yet
another official interlocutor. Instead of seeking to challenge the
government by building a political alternative of our own, all
initiative is handed over to another section of the ruling class.
Nothing could be more clearly designed to emphasise the loss of popular
power than the fact that people are now expected to champion judges
appointed by the Crown against the politicians they elected. 
-- 
James Heartfield


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