Judicial activism is a problem in almost every country. Judges have a
lamentable, if inevitable, tendency to
rule on the basis of what they think the law ought to say rather than what it
actually says.
But here’s a puzzle. Why do they always seem to be biased in the same
direction? Courts are forever striking down deportation orders, but did you ever
hear of them stepping in to order the repatriation of an illegal immigrant whom
the Home Office had allowed to stay? The imposition by Parliament of minimum
prison tariffs for certain offences was howled down as an assault on judicial
independence. But maximum tariffs? No problem there. It’s common for warrants to
be served against Augusto Pinochet or Ariel Sharon or George Bush; never against
Fidel Castro or Robert Mugabe or Kim Jong-un. A minister rules that a murderer
should't be released? Outrageous! A minister rules (in Northern Ireland) that
murderers should be released? Quite right.
The US judge Robert Bork wrote a book called Coercing Virtue, which argued that
judges were consciously seeking to advance an agenda that had been rejected at
the ballot-box. It amounted, Bork averred, to “a coup d’état – slow-moving and
genteel, but a coup d’état nonetheless”.
Judges are often open, when speaking extra-judicially, about what they
see as their obligation strike down (in Lord Woolf’s phrase) “bad laws”. In one
sense, judicial activism is inescapable. Someone, after all, has to be the final
arbiter. As Bishop Hoadley of Winchester remarked three centuries ago, “whoever
interprets a law may justly be considered the lawgiver, not he who first wrote
or spake it”.
Still, why does the judiciary lean Left? Half a century ago, the popular
stereotype of a judge was of a stern disciplinarian committed to the absolute
defence of property rights. What changed?
Part of the problem is surely the appointments system. Judges used to be
chosen by the Lord Chancellor – a system which on paper seemed open to abuse and
which, for that very reason, was in practice almost never abused. Successive
Lord Chancellors, conscious of their responsibility, would carefully avoid any
suspicion of partiality. Then, in 2005, Labour created a Judicial Appointments
Commission, which was charged with promoting candidates on the basis, inter
alia, of “the need to encourage diversity”. While diversity is certainly
desirable (diversity in the fullest sense – of opinion and outlook as well as
sex and race), the vagueness of the criterion opened the door to favouritism and
partisanship.
Indeed, the prejudice starts further upstream. It’s not easy to be a
judge unless you’ve been a QC. The Bar used to be self-regulating, but New
Labour changed that, too, creating a quango called QC Appointments. Here, too,
one of the criteria is 'commitment to diversity'.
