Who should we get to sort out our venal and cavalier bankers? It’s an interesting question. The Labour party wishes to inflict upon them a plague of lawyers, to use Jeremy Bentham’s apt expression, presided over by some bewigged and self-regarding judge. A judicial inquiry, then, which will end up costing the equivalent of a whole bunch of bankers bonuses and then some. The argument seems to be that the government, in preferring the inquiry to be carried out by parliamentarians, is affording the matter too little seriousness. Select committees are all well and good for the minor stuff, but such is the public outrage on this particular matter that the inquiry should be carried out at a higher level, a level beyond parliament. The body which makes the laws is not good enough, it lacks import; paradoxically, it is easily trumped by the body which does its bidding by administering those laws.
If you were looking for a tacit admission of the declining power of parliament and MPs, then here it is. If you were looking for more evidence that we now live in a juristocracy, rather than a parliamentary democracy, then here it is.
It is an odd position for the Labour party to take, ideologically, you might think; as Jeremy Bentham again argued, why should we prefer the opinion of the few to that of the many? If the public is enraged by the bankers then it should surely be the properly elected representatives of the public who channel that generalised disquiet into some sort of specific and I daresay ineffectual action. What do the judges represent, other than the pinnacle of a remote, elitist, self-serving, privileged, over-remunerated and vaultingly ambitious profession? And yet it is quite possible, if not probable, that the public might be on Labour’s side in this argument; somehow, inexplicably, judges and lawyers are respected by the general population. They think they are to be trusted, despite overwhelming evidence to the contrary. Whereas — well, we know exactly what the man in the street thinks about politicians. He thinks about the same of them as he does of journalists, both rather lower in public esteem than, say, a pox doctor’s clerk or even an estate agent.
And how they have grown, both in size and importance over the past 20 or so years, these legal monkeys — nationally and internationally. The number of solicitors, for example, in this country has increased threefold over the past 25 years: there are now 128,000 of them, beavering away, forever urging you to sue someone or something or simply realise your right to the £2 billion worth of legal aid we pay out every year to line their capacious pockets. Attempts, incidentally, to prevent the exponential growth of legal aid founder at the European Court of Human Rights, where the judges there do what judges always do, primarily — look after their own interests and the interests of their profession. It is a human right for people to have legal aid; if ever there was a clear case of Bentham’s phrase ‘nonsense on stilts’, this is it.
But such hyperbolic stilts. At the rate we are going, by the year 2050 almost everybody you meet will be a solicitor. An extra 88,000 of these creatures in the past quarter of a century. They are what this country has, these days, in lieu of an industrial manufacturing base. To give you an idea of what it is they get up to, the number of personal injury claims as a consequence of motor accidents has increased by 80 per cent in the past seven years: that’s the main reason why your car insurance premiums are so high.
There are more barristers, too: 15,300 of them at the moment, up 500 on the number we had — a number which seemed, to me, fairly sufficient, all things considered — ten years back. And yet the entire profession has managed to remain far more aloof from the general trend towards egalitarianism, the pressures upon the other trades and professions which insist that somehow the nation be represented equally, there should be no discrimination, and so on.
I do not have the figures as to how many high court or appeal court judges attended private school. My guess is that it’s on the highish side and, at the top level of the judiciary, approaching 100 per cent. Not terribly different to our current government, then, I suppose you might argue. But even our current government has one or two women in it and the occasional, if rare, dark face. Of the top six categories of judge in 2011, none whatsoever came from a black British or Asian British background: not one. Only 15 per cent of high court judges are women, and a rather smaller percentage obtains for Supreme Court justices and lord justices of appeal. How have the judges, alone among all professions, got away with this for so long, and managed to preserve their gilded hegemony?
But it is the extent to which they supersede parliament, and are perceived as being above parliament, that is more worrisome than their mere grasping fecundity. Increasingly they adjudicate on matters which are more properly the dominion of politicians, of the people we elect. It is not simply the egregious and galling cases of jurisdictions handed down both from Europe and our own courts, on cases which revolve around something to do with human rights (an area where the judges and the lawyers seem to believe that they are uniquely equipped to deliver the proper judgments, no matter that these judgments invariably fly in the face of public opinion, common sense and of course the wishes of the government). Their lordships might, in these cases, point with a certain smug satisfaction to the fact that our politicians signed us all up to treaties which demand that we be bounded in perpetuity by their ludicrous decisions. But still they overreach, even here, even given the latitude they have been granted by the ill-advised siphoning off of sovereign powers.
And I suppose we ought to concede that illegally domiciled Somali rapists, Albanian thieves and pimps, Jamaican Yardies, Serbian war criminals and enthusiastic, if largely incompetent, Yemeni al-Qa’eda jihadists should be protected from the peremptory justice we might mete out to them. But increasingly their lordships are handed a vast wodge of dosh and invited to adjudicate, with a large retinue of hugely irritating lawyers, on purely domestic issues; the judicial inquiries. These costly beanos are popularly seen as a means of ‘kicking the issue into the long grass’, staving off demands for immediate legislation or the doling out of punishment to highly placed miscreants. This is sort of the objection which the Conservatives have now made to Labour’s demands for a judicial inquiry into banking malfeasance, and there is indeed a point to it.
Over the years their lordships have been spectacularly useless at pointing the finger, at getting things done, at meting out justice. The inquiries drag on and on and on, the lawyers stuff their wallets with our money, the public loses interest except in the inconceivably huge cost of the business and eventually, after aeons, the judge in question manages to reach a series of conclusions which are almost always anodyne, exculpatory and often risible. I would point you in the direction of the former Lord Chief Justice Hutton and his infamous inquiry into the death of the government scientist David Kelly for confirmation of this. But there have been many more: into BSE, the Marchioness disaster, the Criminal Courts Review, Bloody Sunday, Harold Shipman, the Potters Bar rail crash and so on and so on.
The thing we learn from these is that the judges are more, rather than less, inclined to protect the vested interests of those they are there to investigate. And as we have seen from the current Leveson inquiry into the way us lot behave, the press, and our former penchant for hacking phones and bribing coppers and the like, there is no great appetite for freedom of speech, or for rigorous inquiry. If there is a secti
on of society which the judiciary holds in even more contempt than it does the working classes, it’s the press. Scrutiny, they believe, is their job.
This business should not surprise us. The judiciary has long been used as a means of ameliorating the egalitarian instincts of democracy; in the late 18th century, while Bentham was still around, it was the means by which the early and worrying signs of democracy could be ‘mediated’ by aristocracy — hence, one supposes, his objection to it. But these days it is not mediation; it has become an end in itself — and of course we here in Britain are not alone. Ran Hirschl, in his book Towards Juristocracy, charted the extraordinary amount of power that has been transferred from elected representatives to these unelected and socially insulated judges and lawyers in four countries.
The point, according to Hirschl, is that the judges do not serve as a brake on unrepresentative or authoritarian administrations, as had originally been envisaged. Rather, they were a means by which an affluent and powerful elite was able to restrain the wider democratic impulse, and indeed supersede it. Hirschl is a leftie liberal, incidentally. I don’t know what he thinks of Somali rapists and Albanian thieves. I suspect he probably likes them rather more than I do. But the point nonetheless holds.
I think we need to rid ourselves of this notion that these monkeys are impartial arbiters, blessed with the supernatural power of being able to divorce themselves from the petty concerns of the here and now. There are, I am sure, perfectly adequate judges who deserve our respect. But as a whole they do not protect us all from an overpowering and over-reaching polity. They do the reverse; they protect the status quo and thwart the public will. If we have a crisis with our bankers, and I suspect that we do, then I wish it to be addressed by people who are accountable to me, and who I can get rid of through the ballot box if they flinch from taking the appropriate action. How do you get rid of a judge?
This article first appeared in the print edition of The Spectator magazine, dated 7 July 2012Tags: iapps