Review

Why judges are not ‘Enemies of the People’

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Legal Cheek reviews the latest book offering by legal commentator Joshua Rozenberg

For some, the UK legal system consists of courts made up of an “unelected panel of out-of-touch judges” (the Daily Mail). In this world, Britons are engaged in a war which pits “the judges versus the people” (the Daily Telegraph).

Judges have overreached themselves, the argument goes, they have become too political; they use judicial review and human rights cases as weapons to thwart government policy and the democratic will. Critics cite a never-ending stream of court decisions covering issues such as whether or not prisoners should get the vote, over the deportation of immigrants or the so-called bedroom tax, which have ended with government “defeat”.

This battle was most graphically articulated in the wake of the High Court decision in November 2016 that Brexit could not be triggered without the UK parliament passing a law to enable the Prime Minister to do so. The next day the three High Court justices appeared on the front page of the Daily Mail under the infamous headline: “Enemies of the People” (referencing the label given to so-called traitors to the Communist regime by Stalin during his purges) for “frustrating the verdict of the British public”.

Joshua Rozenberg, the Captain America of legal commentators, has decided to tackle this debate head on in his new book, adopting the infamous Daily Mail headline. From its sub-title, How Judges Shape Society, I was not sure which way Rozenberg was going to argue this. In his preface, he explains that his book will examine: “How judges make law”, and says: “it can’t be denied that the judiciary has the power to shape society.” If that is the case, surely that supports an argument that judges have gone too far and become too political?

Rozenberg demonstrates why this is not so. He does this not by detached argument but by taking the reader through a number of key cases that show how judges do change the laws and do shape our society but do this, on the whole, pretty well and divorced from party politics. When you actually get into the detail of the underlying laws and principles that, like the unseen currents of a river, direct the judges to their decisions, it does not give a picture of a league of men and a few women with a political axe to grind.

Rozenberg, who is the master of the art of making cases comprehensible, takes us through a range of landmark legal decisions such as on assisted suicide, privacy law and a Legal Cheek favourite, the ‘gay cake’ case, to make his point. Here’s just one example, a case concerning marital rape: up until 1990, the courts had found (since the restoration) that a husband could not be convicted of raping his wife. The matter came to the Court of Appeal in 1989 and they decided: “the idea that a wife by marriage consents in advance to her husband having sexual intercourse with her… is no longer acceptable.” It found the law as it was had become “anachronistic and offensive”. That case changed the law so that the marriage relationship is now irrelevant to the question of whether there has been a rape. The husband was found guilty.

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The book explores how our constitutional system balances judicial power with the other two branches, the executive and the legislature: compare the US, where the Supreme Court can render a law unconstitutional which means that the decision can only be reversed by changing the constitution. Parliament under the English system has the last word because it can enact correcting legislation in the light of a court decision.

Following the unpopular Article 50 decision, the government introduced an act of parliament enabling the PM to trigger Brexit. It was a democratically-elected government that brought in the Human Rights Act. If governments don’t like the fact that the Act has led to a lot of policy challenges, then “parliament is to blame”; the government could change the law (though it is worth conceding that this would not be quite such a simple thing to do due to the European Convention on Human Rights).

The book has a lucid introductory section that helps the reader to navigate the legal and constitutional webs that follow. Rozenberg also wants us to really think about the legal dilemmas that cases often raise and put ourselves in the shoes (brogues?) of the judges. So along the way he poses the questions: “What would you do? How would you decide?” Sadly, most of the time, I felt myself wholly unable to draw any sort of conclusion as to how I should grapple with freedom of expression versus freedom of religion or deciding what is in the best interests of a child with an irreversible condition. Perhaps that was the point of the exercise: to humble me in the face of these quandaries.

There’s sharp commentary here too: Rozenberg is critical of the way that the ‘Enemies of the People’ episode was handled by Liz Truss, then Lord Chancellor: “something of a political lightweight”; he is frank about the way the media covers these cases: he highlights how the Daily Mail made a point of using pictures of judges in “full-bottomed wigs that are worn only on ceremonial occasions”; and, in passing, mentions that the Daily Telegraph “used to be regarded as a serious newspaper”. (Rozenberg, in fact, resigned from his legal editorship of that particular once-serious newspaper because it had sensationalised a story he had written about the Al-Skeini Iraq War cases.)

There is an intriguing thread running through the book where Rozenberg explicitly refutes various arguments raised by former Supreme Court justice, Lord Sumption (the one with the ties), who has been the most recent, vocal and successful proponent of the ‘judicial overreach’ position, which he did in the BBC Reith lectures of 2019. Thankfully, Rozenberg gives little airtime to beliefs that what the UK needs is a US system of elected judges, because not even Lord Sumption has argued for that.

Enemies of the People? is a timely and illuminating book that will give its readers an appreciation of why judges are not the enemies of the people, and they may be “the only friends we have”.

Joshua Rozenberg is a British legal commentator and journalist. His new book, Enemies of the People?, is out now.

56 Comments

Belinda

It is very very true, in fact. Judges are there to ensure the law is upheld. Sometimes some naughty types need their underwear pulling down and their bottoms taking a good smacking in order to teach their peers that their behaviour is wrong. Embarrasing? Sure. Necessary? Definitely.

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Where has critical analysis gone

So… ‘the judges aren’t out of touch… unless of course we’re talking about Sumption, he was most definitely out of touch’.

Rozenberg doesn’t ‘refute’ anything, he parrots the arguments against the overreach position made by Baroness Hale… these are perfectly valid but they don’t ‘refute’ anything, they are merely an opposing opinion.

And of course Sumption doesn’t want political appointments, his position is that political appointments would be a natural progression if the court continued to overreach.

The ‘enemies of the people’ line was roundly ridiculed by absolutely everyone immediately afterwards, and selective quotes from the Telegraph don’t really strengthen your position.

This isn’t a a review, it’s a political position.

(11)(1)

Anonymous

Although in Barton v Wright Hassall Sumption was responsible for one of the most against the people decisions in the history of the Supreme Court.

(2)(0)

Showround @ Bakers

Don’t think this needs saying to anyone who doesn’t have a double digit IQ tbh.

(2)(0)

Anonymous Ciaran Goggins

You draw your judiciary from public school Oxbridges types. Many laws yet little justice.

(2)(27)

Anon

People who go to private schools and Oxbridge are the best educated and brightest in the country. It would be worrying if they did not dominate the judiciary.

(35)(7)

Anonymous

Neither of which necessarilymake them good judges. They often can’t relate to or have conflicting interests from the people they’re judging and lack wisdom.

(6)(32)

Evidence

“They often can’t relate to or have conflicting interests from the people they’re judging and lack wisdom.” What is your evidence for this?

(52)(4)

Anonymous

Evidence – I think its obvious, so before answering what’s your reason for asking? Are you saying you disagree, and if so why?

Evidence

Jun 30 2020 4:38pm: so you haven’t got any evidence. Thought not. You are just trotting out tired nonsense. Back to your exams.

Anonymous

Evidence – you don’t know if I have evidence. Still awaiting for the answers to the questions.

Anon

The only evidence social justice warriors need is the messages they hear from their hearts. And then armed with those messages they churn out crassly distorted statistics often derived from self-selecting surveys to further their evangelical mission.

Evidence

Jun 30 2020 10:37pm: still no evidence. Look forward to seeing it.

Evidence

Jun 30 2020 10:37pm: if you had evidence, you would provide it. Let this be a lesson, which will assist you if you become a lawyer: if you make an assertion, remember that you need to have evidence to back it up, or you will look foolish. I suggest you return to your exam revision.

Anonymous

Evidence – if you genuinely wanted the evidence you would answer the questions. Every comment you post without doing so merely confirms you don’t want it. If I’m a student and you’re a lawyer the extent to which you’ve been outplayed here makes you look twice as bad. Name your favourite and least favourite retired judge, together with reasons why.

Anonymous

Evidence, 7.03, then answer the questions.

Anonymous

What crassly distorted statistics often derived from self-selecting surveys to further their evangelical mission 6.47am? What evangelical mission?

anon

Jul 1 2020 6:47am: absolutely. And if this tiresome person had any evidence for his assertion at Jun 30 2020 2:07pm, he would provide it. Instead, he spouts jejune garbage.

Anon

Its not that they don’t have evidence 10.07, its that you won’t answer the questions which will allow it to be provided. Who’s your favourite judge? If you can’t answer this you’re not getting the evidence.

Anon

Jul 1 2020 10:45am: you are peddling a classic Morton’s Fork fallacy. If you had the evidence, you would provide it.

Anonymous

Indeed, indeed, you’re in a dilemma. Stop asking without answering the questions and you’ve been shut up. Keep asking without answering the questions and it shows you’re not serious about wanting it. Either way you lose. Write a 500 word essay on jurisprudence by noon.

anon

Jul 1 2020 11:22am: you clearly do not know what a false dilemma is. And you still have not provided the evidence. I am beginning to worry that none in fact exists.

Anonymous

11.28 is stuck. You know what you gotta do.

Started the essay yet?

Anon

Jul 1 2020 11:40am: where’s the evidence? I am now sure that none exists. In future, exercise some restraint before saying things you can’t back up.

Anonymous

12.20, your essay is overdue so you won’t be getting the evidence, which exists. What was said remains true. Going forward dont ask for evidence when you don’t want it.

Anon

Jul 1 2020 12:37pm:

“What was said remains true.” Where is the evidence?

Anonymous

You said it didn’t exist 12.56, so why are you asking for it?

Anon

Jul 1 2020 2:17pm: thanks for confirming there is no evidence.

Anonymous

2.17 – I didn’t, I said you weren’t getting it because you didn’t do your essay on time. You said you were sure there wasn’t any, so why are you asking for it?

Evidence

Jul 1 2020 3:00pm: I am glad you now agree with me that there is no evidence.

Anonymous

I didn’t 3.11, I said you weren’t getting it because you didn’t do your essay on time. You said you were sure there wasn’t any, so why are you asking for it?

I told you to get you’re upvotes up to 100, they’re only at 41. Get them fingers a-working!

Anon

Jul 1 2020 3:20pm: I am relieved you agree that there is no evidence.

Anonymous

I didn’t 3.41, I said you weren’t getting it because you didn’t do your essay on time. You said you were sure there wasn’t any, so why are you asking for it?

I told you to get you’re upvotes up to 100, they’re only at 42. Get them fingers a-working!

Anon

Jul 1 2020 3:55pm: thanks for confirming there is no evidence.

Ridiculous Comment Awards

Annnnddddd the stupidest comment of the day goes to….. Anonymous @ 2.07pm!!!!!!!!

Congratulations, and tune in tomorrow for more from the Ridiculous LC Comments Awards.

(40)(3)

Anonymous

Why do you find it ridiculous? Downvote that!

anonymous

Jun 30 2020 4:35pm: spot on. This tawdry person has been owned.

Anonymous

5.32 – well done for owning 4.35 and making them waste their time pretending to be somebody else. Now everyone is laughing at them!

Fair

Jul 1 2020 10:09am: Yes. And there is no fool like one who does not know his foolishness.

Anonymous

Indeed Fair, that’s why people are pretending to be somebody else and everyone is laughing at them!

the truth hurts

Jul 1 2020 11:42am: the only person people are laughing at – as shown by the voting – is Jun 30 2020 2:07pm, who made an assertion in respect of which he has failed/refused to give evidence.

How would you know?

No, they’re laughing at the person who is assuming multiple identities. Given that person has been wasting their time upvoting their own comments and downvoting others the laughter just got longer and louder. Why don’t they upvite their own comment a few more times ans see if they can get to 100. If they want to see evidence they know what they gotta do.

Still no evidence

Jul 1 2020 12:25pm:

“No, they’re laughing at the person who is assuming multiple identities.”

Where is your evidence that (a) someone is assuming multiple identities; and (b) people are laughing at that person?

“Given that person has been wasting their time upvoting their own comments and downvoting others the laughter just got longer and louder.”

Where is your evidence that (a) someone is upvoting their own comments and downvoting others; and (b) people are laughing at him?

The only evidence as to how people feel about this debate has been identified by Jul 1 2020 12:04pm, who correctly points out that the votes show overwhelming disagreement with Jun 30 2020 2:07pm, who made an assertion in respect of which he has failed/refused to give evidence; such disagreement probably does provoke and/or reflect levity, given the (ever-increasing) absurdity of the positon adopted by Jun 30 2020 2:07pm.

Anonymous

The number of upvotes and downvotes are shown. The laughter at him or her is the evidence of the laughter. That laughter just got louder.

The votes identified by 12.04 are evidence of someone posting under different ids multiple upvoting/downvoting comments. The levity is directed at that someone, who knows what they gotta do if they want to see evidence.

Still haven’t seen the jurisprudence essay yet.

Evidence

Jul 1 2020 2:25pm: thanks for confirming you have no evidence.

Anonymous

Thanks for confirming youve seen it 2.48. They’re still laughing. Upvote that!

Anonymous

You still haven’t said why you find the comment ridiculous. Perhaps its because you know it to be true.

Evidence

Jul 1 2020 3:02pm: thanks again for confirming you have no evidence.

Anonymous

Thanks for confirming youve seen it 3.10. They’re still laughing. Upvote that!

Anon

Jul 1 2020 3:18pm: thanks for confirming there is no evidence.

Anonymous

Thanks for confirming youve seen it 3.40. They’re still laughing. Upvote that!

Anon

Jul 1 2020 3:58pm: thanks for confirming there is no evidence.

creed

Is it really judges against the people if the government is elected by the first past the post system?

(2)(0)

Ed

I’ve just come to this commentary and it makes pretty exhausting reading. But in fairness to Jun 30 2020 4:23pm, the assertion by Jun 30 2020 2:07pm is (at best) tendentious. It is surely fair to ask for at least some evidence in support of it; and a refusal to provide it inevitably leads to the conclusion that none exists, and that therefore the assertion is not only false but made in bad faith.

(24)(1)

Anonymous

There is evidence, but you’re not seeing it because you didn’t complete your jurisprudence essay on time.

(2)(22)

Ed

You’re right 3.57, my earlier post was my latest attempt at posting under multiple identities. I’ve also been guilty of multiple upvoting and downvoting. Sorry, you’re right and I agree with everything you say. In future when I post under multiple names I’ll stick to Anonymous or Anon. You won!

(2)(25)

Comments are closed.

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