In praise of criticising judges

The great Robert Tombs suggests that, in England, there has long been an inhibition against political violence and extremism thanks to a political culture which places a strong emphasis on accountable government. 

Last week, the British public were treated to a series of astonishing reports by the Telegraph that convicted foreign criminals were seeing deportation orders overturned by judges on various legal grounds. What made the cases so sensational were the somewhat extraordinary justifications being used by the courts in their rulings against deportations, from the argument that a Pakistani paedophile’s deportation would be unduly harsh on his children, to an Albanian criminal’s being unjust due to his son’s preference for British chicken nuggets.

Naturally, reporting of this kind quickly spread among our political class, and last week at Prime Minister’s Questions, Sir Keir Starmer and Kemi Badenoch took turns thumping one another with accusations of responsibility for this chaos in the courts. Wednesday’s session saw a particular focus on an Upper Tribunal decision to permit the settlement in Britain of a Palestinian family who had applied for asylum through a scheme for Ukrainian refugees. 

In a surprising turn, England’s most senior judge, Dame Sue Carr has issued a rare public rebuke of the Prime Minister, the Leader of the Opposition and seemingly all Members of Parliament for publicly criticising a court verdict. Condemning our politicians’ behaviour as unacceptable and as a possible attack on judicial independence, the Lady Chief Justice stated that if the government disagreed with a verdict, it should voice its opposition through the appellate process. 

That the Lady Chief Justice has been “deeply troubled” by such a Parliamentary debate is, well, deeply troubling. The simple fact of MPs disagreeing with the verdict of the court does in no way constitute an attack on the judiciary. As the Lady Chief Justice herself pointed out, if MPs think that the law is wrong then Parliament has a prerogative to legislate. But if the response to healthy debate about the nature of a court verdict is a scolding, how does the Lady Chief Justice expect Parliament to debate the merits of changing the law? It is not the place of a judge to tell our sovereign Parliament what matters are up for debate. 

Our MPs should also be free to challenge the contention that judges are acting on a solely legal basis of simply applying the law to the existing facts of a case. In many of the above examples the rationale behind whether deportation was a proportionate punishment for the defendant is as much a political question as it is a legal one. To whom are judges that apply such generous interpretations of the law accountable?

Where the Lady Chief Justice is right however, is that judges are acting within a legal framework which Parliament has the right to change. Many of the above cases revolve around creative interpretations of articles in the European Convention on Human Rights (ECHR). In the case of the Palestinian asylum claim for instance, the judge ruled that the appellant’s application through a Ukraine scheme was irrelevant, as Article 8 of the ECHR (the right to private and family life) allows them to settle in Britain given one appellant’s brother is a British citizen. 

Parliament could choose to change this by repealing the Human Rights Act 1998, which enshrines ECHR articles into domestic law, as well as withdrawing from the ECHR and European Court of Human Rights to avoid domestic judicial decisions from being repeatedly challenged on such extraordinary grounds. It should also repeal the Constitutional Reform Act 2005 which neutered the traditional role of the Lord Chancellor and established the unaccountable Supreme Court which, far from being a hallowed English institution, has served as a two-decade aberration of common law. This would go a long way in restoring accountability in our judiciary, which has always played an integral role in British politics. 

Accountability is central to our politics. No one is above it

It is worth adding that there is something ominous about the news that, alongside the criticism of parliament, The Lady Chief Justice has set up a new security taskforce to review court and judicial security. While it is just as reprehensible to abuse a member of the judiciary as it is a Member of Parliament or any public official, Parliament — and by extension the public — must be free to discuss the verdicts of the courts. 

Perhaps the Lady Chief Justice could better utilise her rare public interventions to address improving transparency in the courts. Adam Wren’s heroic campaign at Open Justice UK is desperately trying to navigate through a bureaucratic quagmire to get court transcripts from as many of the landmark Asian grooming gang cases as possible in order to prevent these crimes from repeating, in the name of justice for the victims. Accountability is central to our politics. No one is above it.