Magazine article The Spectator

Who Will Judge the Judges?

Magazine article The Spectator

Who Will Judge the Judges?

Article excerpt

The judiciary exists to serve the public, says Peter Jones , but it is in danger of becoming an oligarchic elite accountable only to itself

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 judgment 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) raise 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' 6-1 decision. But this is how it was reported - and there was no explanation, no comeback. Whose side were those judges on? It does not look as if it was ours.

In another case, 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 judgment 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. …

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