That Lord Woolf, he has a bit of a cheek, doesn’t he? I don’t know if you caught his intervention in the Criminal Justice Bill debate the other night, but it was the usual stuff. He excoriated the politicians (David Blunkett) for trying to fetter the discretion of the judges. He was appalled, said the Lord Chief Justice, by the attempts of these vote-grubbing politicos to erode a vital judicial freedom.
‘The present proposal will have the effect of increasing political interference,’ he said. Well, much as we may admire his liberal instincts, it strikes me that his lordship’s words admit of a paradox. Where was he situated when he made those remarks? On the red benches of the Upper House, as Parliament debated a piece of government legislation.
You may or may not agree with his views about sentencing; but is it not bizarre that a senior member of the judiciary should also be part of the legislature, and be able to stand up in the chamber of parliament to make a speech designed to frustrate the passage of a Bill? Isn’t that an anomaly quite as gross as poor old Blunkett trying to stop the judges giving child murderers some namby-pamby sentence?
One day, the lord chief justice may be asked to adjudicate over some point of the very Bill he is now helping to formulate, and with whose clauses he finds himself in such disagreement. Whatever happened to that ancient principle, nemo iudex in causa sua? The answer, of course, is that Harry Woolf would himself accept the peculiarity of his position.
The machicolated hodgepodge of the British constitution no longer coheres with the clean Ikea lines of the European Convention on Human Rights. This code gives us all the right to be tried by an independent tribunal; and that principle is apparently infringed by the jumbling, in the upper reaches of the constitution, of the legislature and the judiciary.
All of which partly explains Labour’s chaotic announcements of last week. The government has adopted the Bingham plan (see Spectator, ‘Top judge’, 25 May 2002) to take the law lords, the supreme court of this country, out of their scruffy little parliamentary corridor to create a separate supreme court; and it is a reform welcomed by Matthias (Matt) Kelly QC, the chairman of the Bar Council and the barristers’ shop steward. Mr Kelly is a Terry Woganish Irishman from Dungannon, with a pleasing manner and specialism in personal injury and negligence. If a flower pot falls on your head, or you find a cockroach in your yogurt, Mr Kelly is your man. But as the representative of our leading practitioners of law, he is also well placed to comment on the current constitutional flux.
Mr Kelly is all in favour of the reforms, in so far as they mean separating the executive and the judiciary, but he’s scandalised by the way they have been announced, and perturbed by the potential for political interference in appointing judges. Kelly speaks warmly of the fusty old system by which names were put up in secret to the lord chancellor’s office. Now there is to be some new appointments commission, which will itself be appointed, no doubt, by Tony Blair.
‘It is of the greatest importance that those who sit on the commission must not be party political appointees, because if they are, there’s a danger that the commission will lose credibility. It would be a tragedy for Britain if we went the way of the American supreme court, where the appointing of judges is highly politicised. You should be appointed a judge purely on the grounds of merit and not on the basis of your political opinions.
‘Our judiciary are highly respected, and I am anxious to preserve that reputation because I think it is at the heart of trust in the legal system.’
And how is the commission to be created? Mr Kelly says he has no idea, but refers scathingly to the Downing Street website, which says the government will publish a consultation paper before the summer recess. It does seem an amazing way to redraft Britain’s constitution. Here we are, getting rid of an office that goes back to Angmendus in 605, and we have not the faintest idea how it is to be replaced. Mr Kelly and I try to work out who will be the new head of the judiciary, once the lord chancellor is abolished. Will it be the senior law lord (Bingham) or the lord chief justice (Woolf)? Perhaps they should have an arm wrestle?
‘I don’t know. I don’t think it makes much difference. The English constitution is a wonderful creature.’ And who will sit on the Woolsack? Presumably the new speaker of the Upper House, though no one yet knows how he will be chosen. One thing is for sure: there will be no more Harry Woolf, or Donaldson, or any other law lord speaking in parliament.
‘Yes,’ he says, ‘though personally I think Harry Woolf’s contribution to the debate has been superb. Parts of the Criminal Justice Bill are terribly authoritarian. We have to get politics out of the legal system. There is no two ways about it.’
But don’t politicians have a duty to speak for their constituents, who dislike what they see as lenient sentences?
‘Politicians are there to reflect all of those things, but it is for judges to interpret those laws and administer them on a case-by-case basis. I think it would be quite unacceptable in a mature democracy for politicians to set what in effect will be the tariffs in virtually every individual case. If you look at this Criminal Justice Bill, it is telling a judge what he must do.’
Is he surprised that Blunkett is going down this populist, Daily Mail-ish route? ‘I can see how you come up with the term populist. I would describe it as authoritarian. And I am very surprised at the idea which seems to be current in the Home Office, that no one is entitled to differ from the Home Secretary’s view.
‘I am prepared to shape my reality and the reality of what I perceive in Britain through what I myself see rather than what the tabloids tell me. And the truth of the matter is that we’re actually one of the most penal societies in the world. This is not a nation in which we give criminals a little tap on the wrist and tell them to go away. I know that is how it is portrayed in the media, but we actually lock up more people than virtually anyone else.’
He points out that the Sentencing Advisory Panel engages in widespread consultation with the public on sentencing in general, and then passes on its findings to the Court of Appeal.
‘The startling thing is, when you ask people in Britain what sentence they would pass in individual cases, they actually pass sentences which are more lenient.’
And what about Jeffrey Archer? Isn’t it outrageous that Blunkett appears to be putting pressure on the prison service to keep him inside?
‘I don’t wanna go there, Boris.’