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.