November 14 1999
Goodbye lords, hello the dictatorship of the judgesThe Sunday Times
As the House of Lords passes into its unhappy constitutional limbo, the chief anxiety is that one of our bulwarks against the untrammelled power of government has gone. The House of Commons, the main brake against the executive and where power and authority should principally reside, is now weakened. Not only is it contemptuously sidelined by the prime minister. Its powers have been dispersed: to devolved bodies, to Europe and above all to the courts.
The result is a transfer of power from elected representatives to unelected judges with consequences that have yet to be recognised. The process started during the long years of Conservative government when the judges moved into the vacuum created by the absence of any effective challenge to Tory ideology. This rise in judicial activism gave a fair wind to incorporation of the European Convention on Human Rights into the UK's legal systems, as an implicit acknowledgment that parliament was no longer to be trusted and had to be answerable to the higher authority of a codified system of rights.
When the Human Rights Act comes into effect next year, however, the consequences will not be a boost for democracy. Decisions properly made by parliament will be taken instead or overturned by a judiciary which is unaccountable to the people. This will be a step-change; but it will also make transparent for the first time the influence that the judiciary exercises over our attitudes and behaviour, an influence as profound as it is covert.
The judges maintain that their decisions merely interpret the will of parliament and respond to cultural change that has already occurred. This is deeply disingenuous. Law both reflects and shapes society's attitudes and behaviour. The judges have huge influence; they don't follow: they lead.
A striking example was the recent decision by the law lords to award gay tenants the same rights under the Rent Act as married couples and blood relatives. This in turn followed remarks by the leading family judge Dame Elizabeth Butler-Sloss that it was acceptable for gay couples to adopt children. Asked about such judicial liberalism, the lord chief justice Lord Bingham said it was important for the law to "keep in touch with changing social attitudes".
Yet his assumption that the judges were simply reflecting cultural change was wrong. Tolerance of homosexuality and sympathy for a gay man who has faithfully cared for his sick companion are one thing. The law lords' decision, though, went much further than that. They had the arrogance to redefine the family.
According to Lord Slynn, the leading judge in the case, "family" need not mean either marriage or blood relationship. What precise member of a family, then, is a gay companion if, as Slynn also conceded, he cannot be a spouse? If family is defined, as he suggested, merely by love and care and attachment, it would appear that two devoted elderly spinsters would also be defined as family.
The idea that most people agree with this absurd redefinition is just fatuous. Moreover, most people will be disadvantaged by it. The beleaguered married family will become ever more meaningless if the very notion of family comes to mean whatever the judges declare it to mean. There may be a case for giving property rights to gay people, but as the dissenting law lords maintained, it's not up to judges to decide such matters. It's for parliament.
What's not generally recognised, however, is the extent to which the judges are our real law-makers. On the quiet, they push society in the direction they want it to go. As Slynn observed, over the years the courts have been progressively redefining the family. Indeed, they have been doing so against the wishes of parliament and the public.
Take divorce, illegitimacy and cohabitation. Despite parliament's express intention to the contrary, the judges progressively removed issues of conduct from divorce proceedings. In case after case, they also im-posed the notion of equivalence between legitimate and illegitimate children and between married and cohabiting couples. Family lawyers have pushed the practice of the law beyond what parliament wanted or intended, forcing it to introduce legislation to catch up with the new situation only to find the judges relaxing the rules yet again, leading to calls for further changes in law and yet another rise in the divorce rate as the culture of fragmented family life took ever greater hold.
Or take euthanasia. The judges created de facto euthanasia when the law lords ruled that doctors could remove the feeding tubes from Tony Bland, the Hillsborough victim in a persistent vegetative state. The judges in this case, who denied they had introduced euthanasia, objected bitterly that they were being forced make a decision that parliament had funked.
Yet their complaint was a giveaway, since it implied that they believed the law should be changed. The judges could have upheld the existing legal prohibition against the intentional ending of a life; yet they chose not to. They thus fatefully changed the law, with the result that the government is now considering how to bring statute law into line with legalised killing. Thus the judicial ratchet inexorably turns.
Hand in hand with this arrogation of powers beyond their competence, judges are now appearing to misunderstand the place of law itself. Family lawyers, for example, maintain that justice has no place in their courts where their decisions are driven instead by questions of "need". Family court judges thus preside with equanimity over injustice, having turned themselves into a division of the therapy and social work industries.
More profoundly the remarks by Slynn, implicitly endorsed by Bingham, imply a collapse of the idea that laws governing marriage and kinship are needed to lay down the boundaries of relationships. Instead, rights and obligations are to be inferred from characteristics determined by judges, according to their reading of society or their personal prejudices.
Now the Human Rights Act is to give a huge boost to judicial power. Last week the Scottish executive was forced to dismiss 120 temporary judges whose employment fell foul of criteria required by the European convention - which is already binding in Scotland. This illustrated how the new act will enable the judges to overturn even the most entrenched features of our justice system. Such huge powers will mean we'll be scrutinising the judges as never before and demanding they become accountable, leading inexorably to their politicisation.
Senior judges, anxious to downplay all this, say the new act is merely a development of English common law. On the contrary, as Lord Mustill, the retired law lord, said in a recent lecture, the common law is based on duties, not rights. Rights just happened to be the centre of concern during many judges' formative years after the war. The judges, so desperate to prove they are modern, are still locked into a mindset of the past.
As Mustill observed, we are now ever more aware that we need order as well as freedom; and in exchanging the flexibility of the common law for entrenched legal norms, we may be sacrificing both.
Copyright 1999, Times Newspapers Ltd.