This article is taken from the May 2025 issue of The Critic. To get the full magazine why not subscribe? Right now we’re offering five issues for just £10.
Should politicians criticise judges? In February, both Sir Keir Starmer and Kemi Badenoch attacked Upper Tribunal Judge Norton-Taylor’s decision to allow a Palestinian family to settle in Britain on Convention grounds, notwithstanding the fact that Parliament had not provided a specific pathway for their application.
The Lady Chief Justice, who now dual-hats as the judiciary’s shop steward, said she was “deeply troubled” by the remarks, which is the technical legal term for “incandescently furious”.
Then, in March, shadow lord chancellor Robert Jenrick called for William Davis LJ to be sacked as chairman of the Sentencing Council over the “two-tier” guideline which favoured ethnic minorities.
This time, it was the Attorney-General, Lord Hermer KC, who had a fit, calling such remarks “entirely unacceptable” and creating “a huge threat to the rule of law and the independence of the judiciary”.
Power that cannot be criticised is despotic power
Who is in the right? Clearly, politicians need to be able to criticise judges in some circumstances. For instance, senior judges (viz. High Court and above) can only be dismissed by way of addresses from both Houses of Parliament to the King, which necessarily entails that parliamentarians should be allowed to criticise a judge’s conduct.
Similarly, the Lord Chancellor has disciplinary powers over lower-tier judges ranging up to dismissal and so has to be able to criticise judges in fulfilling such duties.
Beyond that, things get murky. In a 2014 lecture, Lord Dyson MR opined that, whilst the old social convention against criticising judges at all in public was dead, it remained the case that ministers, although they are allowed to disagree with a judge’s decision, should not “criticise the motives or probity of the judge who made the decision”, a principle Dyson justified on separation of powers and judicial independence grounds.
Judges do not criticise legislation extra-judicially (although some law lords certainly did in the days of the Appellate Committee), so politicians ought to keep judges’ good names out of their mouths. Notably, he did not seem to think that backbench and opposition MPs were subject to that rule.
But going back to Baroness Carr’s rebuke of Starmer and Badenoch, she seems to be advancing a vastly broader principle to the one that Lord Dyson had articulated. The Lady Chief Justice told journalists:
It is for the Government visibly to respect and protect the independence of the judiciary. Where parties, including the Government, disagree with their findings they should do so through the appellate process. And, of course, MPs, just like a government body, also have a duty to respect the rule of law.
For good measure, she also accused the duo of criticising the judgment in question “without a full understanding of the facts and the law”.
Baroness Carr is clearly in the wrong. There is no constitutional principle that says that the only legitimate way for the government to disagree with a judgment is to lodge an appeal — if an appeal is even possible, which it often isn’t.
In the case of the Leader of the Opposition, the point about the appeal is obviously moot, and it is not clear how the Lady Chief Justice thinks Mrs Badenoch ought to have framed her criticism of the decision, if at all. One assumes that Lady Carr would have preferred for her to keep her mouth shut completely.
Judges are the holders of enormous public power; and power that cannot be criticised is despotic power. Judges are people of great intelligence and learning, but they are not infallible.
As long as this remains the case, there is no reason why their decisions cannot be criticised by politicians except via the appellate system, as Lady Carr inexplicably suggested in the name of the rule of law.
As Munby J once put it, judges “are expected to be, and I have no doubt are, men and women of fortitude, able to thrive in a hardy climate”. One might add that if a judge cannot tolerate public scrutiny, they have no business being a judge in the first place, at least not in a democracy.
If all of this seems like further evidence that the British system of government is falling apart, one may draw comfort in the fact that things have been far worse, and fairly recently, too.
In 2006, Girvan J of the High Court of Northern Ireland found that the appointment of an official by Peter Hain, then Northern Ireland Secretary, had breached various rules.
After losing office, Hain wrote in his memoirs that he thought Girvan was “off his rocker” and wondered whether the judge had found against him because of tax reforms Hain had introduced.
The Attorney General for Northern Ireland then decided to prosecute Hain for “scandalising the court”, which as far as anyone could remember had not happened in many decades.
Hain issued a mealy-mouthed retraction, whereupon the Attorney dropped the matter. Unwise as they might have been, it is hard to see why Lord Hain’s remarks should be criminalised. Perhaps it would have been better for the whole thing to have gone to trial, if only to expose some fragile legal egos to much-needed scrutiny.
