Author: John Cato, Solicitor-Advocate
I have just read some complete nonsense in one of our national newspapers that simply cannot remain unchallenged – even more so because it was written by Jeremy Warner, one of the country’s most distinguished Journalists, in The Daily Telegraph on the 25 August 2017.
He highlights his article with the comment: –
The UK’s Judges are just as guilty of overreach as those at the European Court of Justice.
He then proceeds through a series of non-sequiturs (and even those are only half baked) to the most astonishing conclusion: –
…Judges have become much too powerful; they should be dethroned and made more democratically accountable.
The British Constitution (that “thing” which organises and distributes and regulates the power of the state) is “unwritten” in the UK; evolving over a long period of time into a stable democratic structure, referencing some documents – such as the famous Magna Carta – but more fixed in our minds than any legislative imprimatur.
You may remember from your days at school there are three pillars holding up this constitution: the legislature – Parliament (which makes the rules); the executive, which consists of the institutions and people promulgating and implementing those laws; and thirdly, the judiciary, who independently rule on the frictions created.
Considering human moral frailty, would it not be dangerous for the Judges to be beholden to any of the parties involved in the disputes which come before them – including the citizen?
In order to make the system function, there are, of course, various overlaps and checks and balances, but a judiciary, accountable to the people, in any more than a moral sense, which is what Mr Warner appears to be proposing, should not be one of them.
Allow me to propose a simple test: imagine the words “the Judges should be dethroned and made more democratically accountable…” came out of the mouth of Adolf Hitler.
That might give us pause for thought.
For example: would we want the judges to make sure their decisions steer clear of making them “enemies of the people” – as they were called by the Daily Mail after ruling against the government’s exercise of prerogative power to trigger Brexit?
Of course not: they must make their decisions in the public fora and subject to those pressures, but their ability to function independently must be carefully guarded, for our own safety’s sake.
A highly trained and powerful judiciary, with the freedom to say yes or no to any application before them, in accordance with their conscientious and diligent interpretation of the Constitution and Rule of Law we all subscribe to – together with them – is a central tenet of our free and liberal (I use the word non-politically) democracy.
Parts of the world where the Rule of Law does not hold good (regions of Northern Nigeria where Boko Haram rule the roost springs to mind) are always noticeable by the lack of an independent judiciary.
You only have to look out at the world for a few moments to know that if you cut down the power of independent judges, you and your family would not be able to stand up safely in the winds that would then blow.