Can We Trust the Judges?
The Human Rights Act will give them unprecedented constitutional power, so we need to know who they are and what they stand for
When the courts granted an injunction to stop newspapers publishing material from Spycatcherin 1987, a young barrister said the case showed the "inherent conservatism of the judges". Putting our civil liberties in their hands through a bill of rights would be "bizarre".
The speaker was Tony Blair, and the subject one of a number on which he has since had cause to change his mind. A bill to incorporate the European Convention of Human Rights (ECHR) into British law is now on its way through parliament.
Blair is not alone in this change of heart, which indicates a massive shift of opinion on the left, away from the position argued in 1977 by J A Griffith in his influential book, The Politics of the Judiciary, that judges, shaped by public school, Oxbridge and the Bar, are inevitably "conservatives, not liberals".
It was the political left's failure to construct effective opposition to Thatcherism in the 1980s that started to undermine this view. Also, says Andrew Puddephatt, director of Charter 88, "political institutions and parties, which had been seen as democratic, legitimate and representative up to the end of the 1960s, were no longer regarded as such". As a result, the centre-left started to build a new platform around the issue of constitutional reform and with it, says Rabinder Singh, barrister and author of The Future of Human Rights in the United Kingdom, "the concept of human rights and the idea of enforcement of them by judges". By 1991 Liberty had published a draft bill of rights, and the following year John Smith declared his support in principle.
Residual doubts about the wisdom of raising the constitutional status of judges were dispelled in the final years of the Major government, when the judiciary clashed repeatedly with the home secretary, Michael Howard. "Judges had begun to feel in their collective minds that they should adopt a more questioning role of the executive," says Puddephatt.
But the crucial question for the left is this: has the judiciary really changed? Can it be trusted to uphold basic human rights and, where necessary, challenge the government on the citizen's behalf?.
Strolling through the Inns of Court in London, there is no reason to think Griffith's analysis out of date. Braying men dash about self-importantly and the typical coffee table bears back issues of Country Life. Griffith himself reminded the Home Affairs Select Committee last year that senior judges are still drawn "exclusively from a small section of the wealthy professional upper middle class". Eighty per cent are public school and Oxbridge and "over the postwar years these figures have varied very little".
Liberal lawyers, however, say the surface facts deceive. Geoffrey Bindman, of Bindman and Partners, a law firm that acts for New Statesman and displays legal aid leaflets in its reception, argues that "20-30 years ago there were a number of outspoken reactionaries on the bench, xenophobic and triumphalist about the English legal system. Appointments to the bench recently have brought to prominence more people with a liberal and humanitarian outlook."
Credit for this goes to Lord Mackay, John Major's Lord Chancellor. It was he who promoted Thomas Bingham to Lord Chief Justice and put Harry Woolf in the number two job as Master of the Rolls. True, both these men (born in the same year, 1933) went to public school (Woolf to Blair's old school, Fettes College) and fit comfortably into the padded-armchair world of the Bar. But they are also perceived as more outgoing than their predecessors, with a wider circle of friends. Bingham is a bespectacled intellectual with a sharp, forensic ability deployed in investigating the collapse in 1991 of the Bank of Credit and Commerce International. Woolf, author of the 1990 report into the Strangeways Prison riot, whose warnings about overcrowding Michael Howard so contemptuously ignored, is more floridly liberal in style and has made a major contribution to rethinking the pattern of civil justice: his Woof reports advocating streamlined procedures and easier access to justice, most of which have been endorsed by the new Lord Chancellor, Derry Irvine. …