The trouble with activist judges

When justice becomes political, democracy itself hangs in the balance.

Until judges are replaced by robots, we will have to accept the reality of activist judges. Even the most august patriarch of the bench cannot wholly escape his innate human biases. And so perhaps there was something in Robert Jenrick’s speech at this week’s Conservative Party Conference, in which he announced that, if elected, the Tories would empower the Lord Chancellor to appoint judges and more carefully scrutinise their political activities.

Those who have supported the ideological capture of our major institutions were understandably furious. The New Statesman claimed that Jenrick had ‘declared war on the judiciary’. But then, the New Statesman is an activist publication which can make no serious claim to impartiality or sound journalistic standards. (Those in any doubt about its mendacity should take the time to read about its shameful treatment of Roger Scruton.)

The problem of an activist judiciary is currently preoccupying the White House, given that a number of federal judges have attempted to block executive policies or have issued nationwide injunctions. Trump himself was convicted on thirty-four felony counts by a judge who had made small political donations to Democratic-aligned causes. It seems clear that given these circumstances he ought to have recused himself. The entire case, of course, was an example of the law being twisted for politically partisan ends. (The best overview is by the senior legal analyst for CNN, Elie Honig, which can be read here.) Little wonder that Trump now appears to be seeking revenge through the courts.

In the UK, there have been a number of revelations of judges tied to political causes whose claim to impartiality seems shaky at best. During his speech, Jenrick spoke of those judges who have been associated with pro-immigration campaign groups and have ‘spent their whole careers fighting to keep illegal migrants in this country’. Many commentators have observed a generalised bias toward asylum applications, sometimes to an absurd extent. Who could possibly forget the Albanian criminal whose deportation was halted by an immigration tribunal on the grounds that his ten-year-old son did not like foreign chicken nuggets?

Leaving such outliers aside, most of us will have noticed patently ideological remarks occasionally uttered by judges during sentencing. In the Lucy Connolly case, the judge explicitly expressed his support for the creed of DEI before sentencing her to 31 months in prison for an offensive and hastily deleted post on social media. ‘It is a strength of our society that it is both diverse and inclusive’, he said. It couldn’t be much clearer than that.

That lawfare has become a major weapon in the settling of political disputes should trouble us all. Judges are not accountable to the electorate, and so any suggestion that they are exercising power for their own political ends is bound to be interpreted as a threat to democracy. Inevitably, Jenrick’s criticism of activist judges, and his call for them to be removed, has led to some commentators assuming that he would prefer judges who simply acted according to the government’s bidding. That way lies tyranny.

This leaves us in a quandary. Ideologues in positions of power who thwart government policies are certainly anti-democratic and authoritarian, but the same would be true of judges who were mere puppets for the ruling party. So what can be done about judges who prioritise their own political agendas over the law? How do we deal with courts that do not merely interpret laws, but seek to invent them?

Of course, a partisan judiciary is only part of the problem. The civil service and sundry quangos are largely activist captured, which means that the administrative state often works against the wishes of the elected executive. I have written previously about the College of Policing’s continual refusal to follow instructions from the Home Office, a problem which has directly resulted in the two-tier policing that currently prevails. When government policy is being set by unaccountable officials, the route to change becomes so fraught that it is often simply avoided.

Tackling this problem will be no mean feat. Douglas Carswell has outlined a meticulous solution – well worth anyone’s time to read – which involves reinstating the authority of parliament, granting the government the power to dismiss obstructive officials and issue them with binding directives, hiring external experts who are not beholden to civil service gatekeeping, and creating a Department of the Prime Minister to coordinate policy.

But even if Whitehall can be restructured, and activist quangos abolished, this still leaves those judges who might override the government’s decisions. Carswell argues that we ought to restore appointment powers to the Lord Chancellor, a remedy that was echoed by Jenrick this week. This does of course risk another form of partisan judiciary and a parallel to the US system in which the president nominates Supreme Court justices who align with his objectives.

Perhaps the answer lies in greater transparency in the system; laws should be drafted with greater clarity so that judges cannot interpret the gaps according to their own political or ideological slant. For instance, the hate speech element of the Communications Act 2003 proscribes language that is deemed ‘grossly offensive’. Such subjective terminology is an open invitation for a judge’s personal prejudices to sway the outcome.

All of this is leading us to one key question: how do we stop courts from usurping power without making them subservient to politicians? That we currently have a politicised judiciary cannot be seriously denied, but any attempt at course correction will be constitutionally delicate. I do not profess to know the answers, but it is surely a discussion that is long overdue.

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