Murmuring the judges – 2

The system of appointing and keeping judges is often under scrutiny. A few little pushes and a constitutional outrage can be committed in the dark.

In a previous article I looked at the condition of the judiciary and concluded that actually the quality of British judges, in all three of the jurisdictions, is very good, possibly the best in the world, and generally neutral in political controversies.  That makes the system a target for activists.

It would be worse if judges were forced to be political, as they are in the United States. British judges do not get to overturn primary legislation they dislike, and delegated legislation can be struck down only on narrow grounds. They are more vulnerable when decisions turn on social attitudes, and in a multicultural and acultural society in the midst of a culture war, there is no cultural norm and no equilibrium.

David Gauke, Lord Chancellor at the time of writing, gave a speech on 3 July 2019 in which he observed the pressures on judges:

“Those grappling with complex problems are not viewed as public servants but as engaged in a conspiracy to seek to frustrate the will of the public. They are ‘enemies of the people’.”

– and that:

“Our judiciary has a reputation for intellectual rigour, careful consideration of the arguments, and a serious-minded determination to each decision based on what is right and not necessarily what is superficially popular. I am not sure that all politicians have the same reputation.”

The easy target in the speech was ‘populism’, but there is more pressure from social justice warriors. A judge stepping out of line in a judgment or an intervention may be attacked more ruthlessly then being called an enemy of the people.  A judge may make the rather obvious point that a young woman who gets recklessly drunk in a low dive wearing provocative clothes is putting herself at unnecessary risk, but those judges who have said that have reaped a whirlwind of complaints. Had they suggested ‘she deserves it’ that would be despicable but just to suggest that people take more care of their own safety should not be criticised.

This post could be filled with pages of examples of magistrates and officials removed for expressing the slightest dissent from the progressivist line, but that would serve little purpose: the process of Twitterstorm, written complaint and disciplinary action is well known. The main point is whether social justice warriors can enforce their will, and to what extent.

High Court judges have a constitutional protection: they can only be removed after a joint address from both Houses of Parliament.  That ensures that they are politically independent.  Over the course of the three centuries since that rule was enacted, only one judge has been removed by this procedure, for criminal abuse of his position. Circuit judges are less well protected, but there cannot be removed at a whim. For those in the lowest positions, and lay magistrates, a word may remove them.

Watch for voices claiming the current system is old-fashioned or, worse still. ‘obsolete’. It will not be the populists who do that, but the ‘unpopulists’; those with a woke agenda.  They will be working in the dark, in committees and all the little offices that that have been infiltrated on the Long March.

We should all worry about making it easier to sack judges, as that they would be removed for petty reasons.  The argument in learned reports will talk of taking action where a judge has committed a crime or corruption, or become a Weinstein, for that is the way to prise the lid off.

The lid off, it would open the way to politically motivated sackings and we would have an ochlocracy.  The Daily Mail headline about “Enemies of the People” was mild and brief compared with pressure from within the establishment; and the new establishment, not the democratic overlay.  Political storms are easy to begin without thought: when the ‘Birmingham Six’ had their convictions overturned, one MP tried to start the process to sack the judge who had gaoled them, but could go no further as constitutional procedure is robust against emotional lashing-out, but when there is a disciplinary procedure, ,that will be another matter: every so often there is a Twitter storm demanding sackings for public officials alleged to have said something unfortunate (whether they did or not – Roger Scruton’s treatment is still raw). When once even High Court and Supreme Court judges are vulnerable, there is no stopping it.

We would end up with fearful, bland, useless judges, taken from the ranks of those meek and willing to be led by the changing fashions of discourse, not those willing and able to command, which is what a judge must do.

The Long March: conspiracy or accident?

The Long March through the Institutions was advocated by Rudi Dutschke, a German, Communist student activist in 1971: he saw the progress of revolution stifled by the established order and so wrote that Communists could subvert this order by infiltrating the institutions which make it up.

As those with Marxist or cultural-Marxist ideas have apparently taken control of all institutions, the conspiracy would seem to have been sprung.  Something does not feel right about this neat theory though.  For one thing, giant conspiracies do not work, and for another, writing your whole plan in a popular book for all the world to see is a terrible way to run a secret conspiracy.

It has happened though, and as ConHome reminds us frequently, research has found five times more labour supporters have been appointed to public bodies than Tories.

Conspiracy or natural selection?

There may be an element of deliberate exclusion of Tories.  This might be the sort of action which is co-ordinated over dinner parties or WhatsApp groups.  This is a conspiracy, but a localised one rather than anything centrally directed.

It can be hard to deny a conspiracy against conservative-minded candidates when we see apparently co-ordinated attacks on such appointees bursting out into the media.  This might just be a ‘Twitter congregation’.  More studies would be needed to determine how much planned co-ordination goes into such attacks (but with few conservatives now in academic positions it may be impossible to commission such research).

There may be other explanations though for the overwhelming dominance of Marxists and cultural-Marxists in institutional positions; essentially that it has been a natural process caused by the characters and motivations of those involved; an osmosis where the red particles pass more easily in through a membrane and others more easily pass out. 

A body which effectively appoints its own successors, or which has an independent appointments board, will through natural processes entrench its own prejudices.  In making appointments, the board will be charged with choosing those considered sound and sensible: it is natural then to think that their own views are the sound, sensible view and that those who differ from them are lacking in principle or intellect.  If charged with ensuring political neutrality, it is natural to think of their own views as neutral and others as political or “fringe”.  Furthermore, it is natural for a board to choose as colleagues those with whom one can work in harmony, who will not challenge their colleague’s own views and assumptions.

A system fine-tuned to fail

A quick review of the positions offered in the quangocracy shows an interesting pattern:  most senior positions are part-time jobs, paid well for the few hours the holder is expected to work, but not as a career salary.  Therefore anyone who wishes to take a management role in a quango must be one who has the hours to spend: an academic, a semi-retired company director, or more particularly an existing quangocrat with a portfolio of positions to keep his family fed.  These are not career-structure positions:  they are to be filled by those with a “proven track record” in the field, which excludes new blood and favours those in the system.

The biggest ‘Public appointments’ advertising section is in The Guardian (which is essentially a socialist political party which happens to run a newspaper on the side).  The implication is obvious.

In addition, these whose instinct is in favour of commerce and enterprise will gravitate to what most of us would call getting proper jobs:  jobs in commercial business where merit is rewarded and wealth created. Those with no liking for commerce will gravitate to jobs living off state largesse.

Our nation’s social history does not help in this: in the days of a regimented class system, a gentleman would live from his rents and landed income, or seek such a worthy profession as the army the Church or the law, while ‘trade’ was considered a low calling.  Now there are few landed estates, the outlets for those who still despise ‘trade’ are academia and the quangocracy.

A man isolated from the realities of commercial life is isolated from reality and unfit to be entrusted with any great charge.  Also, he cannot be expected to appreciate the need for a limited state, if he has no love for any endeavour that is outside the state.

In this way, the institutions of the state will by natural process be filled with those who would despise the commerciality of a whelk stall and be unfit to be entrusted with one.

Challenging the entrenched powers

If all this is so, then reversing it will take more than exposing a conspiracy, as there is no conspiracy:  it requires a fundamental change in the system which makes this osmosis happen.

The reality of the take-over is undoubted, and it is realised as much by the left-wing as by conservatives.  The defence of left-wing hegemony has been deployed on notable occasions:  just months ago Sir Roger Scruton, Britain’s greatest living philosopher, was barred from an innocuous, unpaid position after a targeted attack:  no conservative is to be permitted a position of influence.

Public frustration at the leaden-headedness of bureaucracy and the strictures of public bodies (and alleged public bodies) has grown to anger, and if elections every five years seem to make no difference, the safety valve has gone.

The action to take?  That might require a longer article.

See also:

Murmuring the Judges – 1

Whatever our constitutional woes, we do have not American judges, and thanks be for that.  We have non-political, neutral judges, and that is an abomination to the upcoming radical establishment.

I enjoy the satires of our judges, sitting bewigged and asleep over long, dusty cases in long, dusty courts, but mainly because I know how far it is from the reality in the courtroom and from the bewigged man and women themselves, whom I have frequently met on social occasions (lest you consider that I often find myself up before them in court, which I do not – I’ve never been caught).

Britain has the best judges in the world, so the judges tell me, and it seems a miracle that we do when there are no detailed systems in place to regulate every aspect of their appointment and discipline, but study suggests that they are best just because there are no such systems.  The British constitution works because it is largely unwritten and works by understandings sufficiently flexible to deal with exigencies, and our appointment of judges works by understandings sufficient to their needs.  What is more, it minimises the infiltration of the system by activists.

The faults in America may first be blamed on the circumstances of the creation of the United States in that it was founded by lawyers, and in the full flush of confidence in the Enlightenment.  The system written by lawyers naturally gave primacy to the law as arbiter of all things, even of the very process of making law and the extent to which to may be made.  We have a more nuanced understanding, under the rule of law, but not the rule of lawyers.

Largely the judiciary in all three of the United Kingdom’s jurisdictions has escaped the political fray by not being political:  unlike the United States, British judges do not have power to strike down primary legislation they personally dislike.  Secondary legislation and wild administrative decisions are open for challenge, and there is no shortage of crowd-funded activists who set out do challenge decisions in the courts, but so far the courts have been robust:  it is not their role to make decisions entrusted to the political sphere.  They get close some times, and they can overstep the mark – which may be the subject of a second article.  For now though the line is held to keep judges non-political, without which they cannot hold the respect which necessary for the equal rule of law to prevail.

If all is as well as it could be, naturally the judges are under attack.  Neutrality is a crime in the eyes of the determined radical, the social justice warrior.  They demand control for their opinions of all the commanding heights of the state, and the judges must conform. In the light of that mandate that threats to judicial independence have come and will come and become more strident as each new step is won. The demand for diversity is not isolated and benevolent, but the first necessary step.  It is not to only threat to the stability of the current system:  these I will look at in a Part 2 article.