Woolf is a Law Unto Himself
David Green in The Times, March 2004
The rule of law or the rule of lawyers?
Lord Woolf has attacked the Government on two fronts for acting contrary to what he calls 'the rule of law'. But he doesn't really want the rule of law at all; his ambition is rule by lawyers like himself.
He wants a different kind of supreme court so that he and his colleagues will be able to strike down legislation to which they object. But by calling the proposed supreme court a 'poor relation' compared with others he gives the game away - his real concern is to extend judicial power.
The role of judges in Britain has never been to make law, but to decide what the law is when there is ambiguity or doubt. Moreover, when such disputes are settled by judges, their sole purpose is to decide in good faith what the intentions of parliament were. They have never been permitted to substitute their own opinions for the wishes of parliament.
Lord Woolf reveals little sympathy for the British heritage of liberty and its intimate connection with the law. The underlying ideal is that of a free people who live in a homeland and accept that they must make some rules to live by, if all are to flourish in peace and prosperity. These restraints are irksome for all of us some of the time, but they are for the long-term good of everyone. If laws are to be freely-accepted obligations and not mere instructions issued from on high, the people must be free to change their laws from time to time. Without the possibility of being able to give or withhold consent through an open parliamentary process, law loses its legitimacy.
No less important, to speak of the rule of law was historically to advocate limited use of force. The law is a clumsy instrument for settling our many differences. Most of what we disagree about is best left to free and open discussion, not dragged up in court where there are final winners and final losers (who may end up in jail).
What about constitutional law? Isn't it special? The real distinction is between laws that can be changed by a simple majority and laws that must pass a more stringent test. Changes in the US Constitution, for example, require the support of two-thirds of both the House and the Senate and three-quarters of the state legislatures. A written constitution is not a charter for arbitrary judicial interference, as Lord Woolf seems to think, but a decision by a free people to tie their own hands in advance in certain limited respects in the hope that the common good will prevail in times of conflict.
Superficially Lord Woolf's claim that the Government should not put itself above judicial review sounds like a defence of liberty. But the Human Rights Act has radically altered the meaning of judicial review. When an earlier generation of judges, even the inventive Lord Denning, spoke of the 'rule of law' we could be confident that the courts were checking the abuse of power. Since the Human Rights Act, the law is no longer the 'standing rule to live by' defended by Locke in the seventeenth century. Instead, it has become more like a list of vague abstractions which can be interpreted to mean opposite things at different times, as high-profile litigants like Naomi Campbell have discovered.
Lord Woolf's claim about asylum is equally misguided. The ideal of liberty under law assumes that the nation is a membership association. As members, we enjoy protections but also obligations, including the possibility of being required to risk our very lives in defence of our country against attackers. Asylum seekers are, by definition, outsiders who have not yet joined. Because they do not face the obligations of full citizens, they have no claim to the same rights. For this reason it would be perfectly legitimate for asylum decisions to be purely administrative, with no recourse at all to the courts. In any event, the Government is proposing only that there should be one appeal, not two.
Judges have a special importance in free societies precisely because they are supposed to be above the fray of day-to-day politics. Lord Woolf's brand of judicial activism and his evident disdain for 'cheerful chappies' who defend the predominance of parliament is endangering the ideal of the rule of law itself.
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