Lest ye be judged

Britain’s deep distrust of elected politicians is pushing the country’s judges into the political realm.

“SOMEONE must be trusted. Let it be the judges.” The words of Lord Denning, a great if flawed judge, were controversial when he uttered them 30 years ago. Back in 1980, Lord Denning was speaking defensively: admirers and foes saw the judiciary as the Establishment in ermine. The criminal justice system was about to enter years of agony and wrenching change as police wrongdoing was exposed, especially in the obtaining of confessions, and big terrorist convictions were overturned. But his injunction now looks rather prescient.

Today, answering Lord Denning’s plea three decades late, a country drowning in distrust has fastened onto the judiciary and its works as a source of redress. After every calamity—whether a terrorist attack, a police shooting, killings in Iraq or a royal death—the clamour rises for inquiries headed by a judge, with the power to quiz witnesses under oath.

Inquiries of one sort or another seem to be everywhere. On October 11th Britain’s press covered the opening of an inquest into the London bus and Tube bombings of July 7th 2005. The bomb attacks have been probed in a criminal trial and parliamentary investigations. But bereaved families want the inquest—headed by a High Court judge—to examine whether the domestic security service, MI5, could have prevented the attacks, and whether emergency services were slow to respond.

On the same day the press reported fresh demands for a public inquiry into the killing of six British military policemen in Iraq in 2003, after a trial of alleged perpetrators collapsed in Baghdad. Interviewed by a newspaper, a Democratic Unionist MP from Northern Ireland appeared to launch an inquiries bidding war. Britain had spent £200m ($320m) on the 12-year Saville Inquiry into the 1972 “Bloody Sunday” shootings of protesters by British paratroops in Londonderry, he claimed, yet could not afford “justice” for army families. On October 7th an inquest jury in London found that police had lawfully killed a barrister as he fired a shotgun from the window of his flat, but in an extended “narrative verdict” said officers had given insufficient weight to the dead man’s alcoholism. Press coverage was extensive but muted, after the widow stated that she respected the verdict.

Meanwhile, a formal inquiry into the Iraq war (the fifth by some counts) that began in July 2009 is continuing, headed by a retired Whitehall mandarin, Sir John Chilcot. Another, headed by Sir Peter Gibson, a former judge, will soon probe alleged collusion between British spooks and foreign torturers.

This is superficially puzzling. After all, by education, culture and habit, most judges are members of Britain’s despised, mistrusted ruling elite. Yet their reputation has rarely been higher.

Voters killing the thing they love

People “want to know what happened”, suggests Michael Mansfield, a barrister and veteran of high-profile inquiries and inquests. What they seek is not retribution but for those in authority to be “brought to book” by legal questioning. The bereaved want lessons learned, giving some meaning to their loss. And the public has no faith in the House of Commons—a noisy, jeering pit of partisan barracking, further undermined by the parliamentary-expenses scandals—as a forum for establishing truth. Simultaneously, he says, there has been “a resurrection of faith” in the judiciary, notably after judges in the House of Lords condemned moves by the previous government to detain or control terror suspects without charge, or on the basis of secret evidence.

Mr Mansfield is a self-described “radical lawyer”, unloved on the right. But his analysis is echoed by a senior Conservative politician, who recalls when judges were seen as “lions under the throne”: upholders of the system. Now, he says, judges are seen as “upholders of the rule of law”, curbing an over-mighty state.

Is today’s inquiry mania sustainable? There are technical reasons why judges seem to be everywhere. Above all, the 1998 Human Rights Act enshrined the “right to life”—from Article 2 of the European Convention on Human Rights—into domestic law. That has transformed inquests, which must now consider not just who died, where and when, but “how” in its broadest sense. That may include deciding if public-policy lessons can be drawn from a death. The quality of inquests used to be hit and miss, with local lawyers and doctors serving as coroners. Now, when a death has an “Article 2 dimension”, a high court judge is often drafted in as coroner, as in the July 7th terror inquest. What is more, a growing number of claimants now seek—and obtain—judicial reviews of decisions made by public bodies, with judges asked to ponder everything from terrorist control orders to planning decisions.

Judges know their prominence carries risks. They are partly filling a vacuum created by the vertiginous fall of elected politicians from grace. Just 13% of respondents trusted politicians to tell the truth in a 2009 survey by Ipsos MORI (below even journalists). Judges were trusted by 80%. British judges are appointed, not elected, and public trust is strongly bound up with their political independence. Lord Carlile, a Liberal Democrat peer and the government’s independent reviewer of terrorism legislation, worries that judges’ findings are cheered when they chime with public opinion, but when they do not—as with the Hutton Inquiry into the death of the government weapons expert David Kelly—they are denounced as a “whitewash”. And the painful truth is that some decisions are properly taken by members of an elected executive. Senior judges are queasy about being asked to review terrorist control orders, for example.

The public’s yearning for judicial resolution of every crisis risks dragging judges close to the realm of politics. Lord Denning was right: someone must be trusted. If judges are not, who might take their place?

THE ECONOMIST—14th October 2010