President Obama got in a bit of hot water last week by suggesting that for the Supreme Court to overturn part or all of the Affordable Care Act would be an “unprecedented, extraordinary step” for “an unelected group of people” due to the fact that it had been “passed by a strong majority of a democratically elected Congress“. For those of us who are fans of the rule of law, the reaction was pleasing: there was immediate and clear recognition that Obama respects the principle that the “power of the courts to review the constitutionality of legislation is beyond dispute“.
Obama’s initial statement would have been music to any English politicians ear (and, interestingly, Newt Gingrich, not that he would thank you for pointing that out). Ministers have a long held tradition of riding roughshod over anyone that dares get in their way. David Blunkett was, of course, the master of the authoritarian anti-democratic outburst (too many to cite, but see here for his typically measured response to suggestions that he might want to tone it down a bit – anyone he disagreed with has lost the plot and/or doesn’t live in the real world). It’s not a party political issue, Theresa May has been just the same. Politicians, like all litigants, don’t like losing. Unlike most litigants however, they get to go national tv and explain just why the judge has got it wrong. Or rather, the problem is that they don’t even do that. They generally wave their hands and talk about ‘unelected judges’ without engaging in the merits of an individual decision.
The irony, of course, is that British politicians haven’t really got anything to worry about. The position that we have drifted into (more on this later) is one where our judges exercise a sort of ‘self-denying ordinance’ to not interfere with an Act of Parliament, however ridiculous, or invidious, or contrary to long held rights, it may be. The Human Rights Act doesn’t change that incidentally, as it specifically kept the ‘Supremacy of Parliament’. Whether this will remain the position is an interesting one, there is some suggestion that as Parliament get more aggressive in their legislation, the judges may respond by limiting the power of Parliament to legislate (see Thorburn v Sunderland  EWHC 195 (Admin) for an example).
Politicians and power are a bit like children and toys. Whatever wise words about ‘checks and balances’ they have said in opposition, when they get into office, they find that they quite like it and don’t like giving any power up to anyone. That is precisely why they need proper checks on them, and an independent judiciary exercising proper Judicial Review is a vital part of any democracy (one we are sadly lacking), as Obama has recognised, even if it is through slightly gritted teeth.
Judges should, of course, not be above criticism. However, politicians should recognise and respect the system, and play the ball not the man; criticise the judgment not the judge.
And I’m certainly not above criticising judges and have got no problem on that score. If anything, I would welcome more openness there. In America for example, there is far more. The Almanac of Federal Judges collects full background details on each judge and detailed commentary on them, positives and negatives, from lawyers who have appeared in front of them. There is more of a free-for-all on the web: therobingroom.com allows comments on all judges, positive and negative with ratings from lawyers and litigants. It is a brilliant site and well worth checking out, but there is no way on earth it, or an Almanac equivalent, would be permitted here. Which is a shame as it would be a useful resource and might make some judges think before shouting.
Whilst the above may sound contradictory, I don’t think it is. It is about recognising the right of the public (and lawyers and politicians) to speak as freely as they wish about judges and judgments, whilst respecting the rules of the game. Our politicians frequently fail on this; showing no respect for the fact that under the law they might not have complete freedom to do what they want, whilst at the same time not recognising a moral responsibility to be a bit informed, rather than just slagging off judges in general terms because they don’t like the consequence of a particular judgment. The fact that the judge that makes a decision is unelected doesn’t help one way or another with whether the decision is ‘right’. Rentaquote Home Secretaries should deal with why a judgment is wrong (and feel free to let rip if they so desire) rather than throwing their toys out of the pram that someone dared question their position. A favourite thing for them to say is that with rights come responsibilities, and maybe that is something they could apply to themselves.
By way of a footnote, Blunkett, the great champion of the people, is still taking the opportunity to have a pop at judges when he can. He’s a busy man however. Hilariously, he’s currently earning fifty grand a year advising News International on social responsibility. As well as trousering £36,000 a year writing an article or two a month for the Daily Mail.