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Magazine
Errors of judgment?
BILL KIRKMAN
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The role of the politician is to set the legal framework and that of the judge is to make appropriate judgments within that framework.
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IT would almost certainly be possible to generate public enthusiasm for public executions and feeding prisoners on bread and water. Bear baiting, or, come to that, throwing Christians to the lions, would doubtless quite easily find audiences. A populist politician could well be tempted to try one or more of these things.
The suggestion, of course, is not wholly serious, but I make it because we have been witnessing in the past week one of our most patently populist politicians, David Blunkett, the Home Secretary (Minister for Home Affairs) engaging, not for the first time, in a confrontation with the Judiciary. On this occasion it was over the sentencing of murderers. He is proposing amendments to the Criminal Justice Bill, which will give to Parliament rather than to judges the power to determine minimum sentences.
Mr. Blunkett has on a number of occasions expressed impatience with what he calls "airy-fairy liberal views", and is not the most obviously dedicated proponent of civil liberties. Such proposals coming from him, therefore, are an obvious cause for concern.
What he is proposing is not unconstitutional. It is obviously proper for Parliament to lay down the framework within which the Judiciary operates. We have every reason to be alarmed, however, when a politician with such a populist approach — "macho posturing" was the description of his attitude by one of his fellow MPs — seeks to restrict judges in this way.
Judges are not infallible, but in interpreting and applying the law they are detached from the political pressures that, by definition, affect politicians, and their judgments are subject to review by other judges — through the Court of Appeal.
In reaching their judgments, politicians inevitably are not detached. They are bound to be subject to popular pressure. Furthermore, one does not have to look far to see that their judgments are all too frequently fallible. If we needed illustrations of this, we did not have to look far in the week in which Mr. Blunkett blundered into battle.
On the other side of the political divide, we had the extraordinary business of Iain Duncan-Smith, leader of the Conservative Party, being forced to "lose" a senior party official whom he had appointed only months ago, when it emerged that the man concerned, Barry Legg, had been heavily involved in the activities of Westminster Council when some years ago it engaged in gerrymandering — for which it was later publicly censured in the strongest terms. How on earth, people asked (not least people in his own party) could he have made such an error of judgment.
Politicians frequently get things wrong. They should not necessarily be blamed or criticised for that. It is after all the business of politicians to try to reflect the wishes of the electorate. If they fail, the electorate in due course exacts its vengeance by throwing them out. It is a rough old business, but it is politics.
The law, surely, has a different role. We lay great emphasis on the rule of law in a democracy precisely because we need some absolute standards, which are not volatile, not subject to change in response to the whims of public opinion.
Of course in a democracy public opinion is important. And, of course, laws have to reflect changing public opinion. That is why for example bear baiting is no longer legal, and why we no longer let children work in mines.
Getting the balance right is the issue. The role of the politicians is to set the legal framework. The role of judges is to make appropriate judgments within that framework. The more tightly the framework is drawn, the more constraints there are on the ability of the judges to examine each particular case, assess the particular circumstances and make proper judgments in the light of those assessments, the greater will be the danger that politicians will be tempted to court publicity and popularity by interfering.
Recently, a succession of court rulings have eroded the power of a Home Secretary to lay down the length of time a criminal sentenced to life imprisonment will actually serve. The rulings have reflected the fact that such power in the hands of a politician, rather than an independent and impartial court, contravened the European convention on human rights. The rulings were, we can assume, irritating to this particular Home Secretary, but that is no good reason for restricting the power of the courts. Politicians, like everyone else, are subject to the law even when they do not like it.
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