Tuesday’s speech by Robert Jenrick, in which he called for “activist” judges to be removed from their positions, has provoked much outrage. The New Statesman said he had “declared war on the judiciary”. Lib Dem leader Ed Davey tweeted “We have an independent judiciary in this country. Robert Jenrick wants puppet judges”.
Two Labour MPs, both qualified barristers, went even further. Tony Vaughan KC wrote that “our judiciary is world renowned …yet this man wants to hand pick our judges and destroy centuries of judicial independence”, while Karl Turner claimed that “the very idea of politically appointing the judiciary is utterly ridiculous. It undermines our very democracy. Political power should be divided among three distinct branches of government—legislative, executive, and judicial. Separation of powers is a very important maxim”.
The consensus amongst the “sensibles” is clear. Robert Jenrick’s plans to eliminate the Judicial Appointments Commission, to prevent activists from being judges, and to place Parliament in control of the judiciary would destroy centuries of tradition, would “undermine democracy”, and would violate that “very important maxim”, the “separation of powers.”
The idea that the judiciary should be appointed by an independent body … is a modern invention
However, that consensus is entirely wrong. The idea that the judiciary should be appointed by an independent body, without any meaningful oversight by ministers or Parliament is a modern invention. It was brought into being by the Blair government, as part of its “constitutional reform” agenda, with the claimed goal of “enhancing accountability and ensuring greater public confidence”.
As the website of the Judicial Appointments Commission explains, in 2003 “Lord Falconer, then Secretary of State for Constitutional Affairs, asserted that it was no longer acceptable for judicial appointments to be entirely in the hands of a Government Minister”. The necessary legislation received Royal Assent in 2005 and, according to the JAC, “radically changed the way Judges are appointed”. Indeed, as recently as the 1940s, the Lord Chancellor was personally involved with the appointment of all judges. As the judiciary expanded over the following 70 years, particularly as a result of the 1971 Courts Act, Lord Chancellors increasingly relied on more formal advice from the Judicial Appointments Division within their own Department. Ultimately, Lord Chancellors remained responsible for appointing judges. So when the JAC began operating the following year, it actually brought centuries of tradition to an end.
And what of Parliament’s power to constrain the judiciary? That was legislated for in the 1701 Act of Settlement. According to George Owers, author of The Rage of Party, a new history of English politics between 1688 and 1715, “when the Act of Settlement was being passed, the Tories crammed it with measures to restrain the power of a future Hanoverian monarch”. Owers explains that this is why the 1701 Act codified the principle that judges served “quam diu su bene gesserint — so long as they demonstrate good behaviour”, as opposed to at the Crown’s whim. The Act also explicitly granted Parliament the power to remove judges, saying that “upon the address of both Houses it may be lawful to remove them”
This power still exists, something the judiciary acknowledge on their website, writing that “both Houses of Parliament have the power to petition The King for the removal of the judge of the High Court or the Court of Appeal”, although they do emphasise that this power has “never had to be exercised in England and Wales …no English High Court or Court of Appeal judge has ever been removed from office under these powers.” So, far from being revolutionary, Jenrick’s suggestion that he would remove judges is a perfectly legitimate, legal and constitutional use of a power which has existed for over two centuries.
What to say about Karl Turner’s much-loved “separation of powers”? The kindest thing to say is that he’s very confused. While there is, of course, an English concept of “separation of powers” — first described by John Locke in his 1689 Second Treatise — it has nothing to do with the idea that “political power should be divided among three distinct branches of government — legislative, executive, and judicial.” What Locke argued is that there should be a separation between the Legislative which is concerned with the making of laws, and an Executive which must exist constantly in order to bring those laws into effect. He also made it absolutely clear that “the Legislative is the supreme power”.
After twenty years we have a judiciary which has become evidently politicised
This is entirely different from an American-style constitution where the Executive, Legislative and Judicial branches of government have equal standing with power divided between them. Parliamentary supremacy has, and still does define the British constitution, despite what some Labour MPs may wish, and despite the efforts of Blairite “reformers” who vandalised that constitution twenty years ago. For the creation of the Judicial Appointment Commission, along with the Supreme Court and the Sentencing Council began a process whereby the judiciary sought to take power away from Parliament.
After twenty years we have a judiciary which has become evidently politicised, with activists who stretch the law (often the Human Rights Act) to fit their preferences rather than the will of the British demos or their Parliament. We see this in numerous immigration decisions.
In June, Leonie Hirst, an Immigration Tribunal judge ruled that an Albanian with 50 convictions could stay in the UK as his crimes were “not extreme enough”, despite him having served a six-year sentence for robbery, theft and false imprisonment. In September a court blocked the deportation to France of an Eritrean man. One of the grounds the court accepted was that he might become homeless or destitute in France and that this would breach his Article 3 rights to not be subject to “torture, inhuman or degrading treatment”.
Similarly, Palestine Action were granted the right to challenge their proscription on the grounds that their rights to free expression and free assembly might be violated, and because the government should have consulted them.
This tendency of the judiciary to block the democratic will of government or Parliament was also apparent in the battle between the Sentencing Council and the Lord Chancellor in the spring. In his letters to the Lord Chancellor, the Sentencing Council’s chair, Lord Justice William Davis articulated a revolutionary and profoundly antidemocratic doctrine in which he claimed that sentencing guidelines were entirely a matter for the Sentencing Council, and that it would be damaging to the independence of the judiciary if ministers or Parliament were to seek to set sentencing policy.
This is the result of the Blairite vandalism. Judges who are increasingly divorced from what the demos and the legislature desire, but who seem to believe that they are above reproach or criticism. MPs, even MPs who are qualified barristers, who so terribly misunderstood our constitution that they will tell you with a guileless face that laws passed this century are in fact ancient foundations of the British constitution without which democracy will fall.
Jenrick is thinking in the finest tradition of English radicals, with his desire to restore ancient democratic rights. This is seen in his desire to restore the office of Lord Chancellor, and the judiciary as whole, so that those institutions are worthy of respect again. Those confused MPs, like Davey, Turner and Vaughan, should read a little more English history. Perhaps then they would be better legislators.
