From Notes of the Month, Socialist Review, No.192, December 1995, p.7.
Copyright © 1995 Socialist Review. Published on MIA with the permission of the Estate of Paul Foot. Paul Foot Internet Archive (marxists.org) 2005.
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Every humiliation for the government is welcome, and it is hard not to rejoice at the stream of judicial decisions from the high court denouncing ministers, especially home secretary Michael Howard. Howard incurred the wrath of the Lord Chief Justice when, without consulting the judges, he arbitrarily increased prison sentences and cut back on remission. The judges insist that Howard’s decisions interfere with what they call the independence of the judiciary. Since the spat, the judges seem to have gone out of their way to come down hard against the home secretary.
No one disputes that it is right and often necessary for the victims of arbitrary behaviour by the government or injustice in the courts to challenge the authorities through the legal system. Such challenges sometimes, though rarely, bring relief to people who have been badly treated or wrongly imprisoned. But it would be wrong to conclude from such individual victories that the judges are preferable to elected politicians. The fact that the elected politician nowadays is usually the odious Michael Howard should not confuse anyone into imagining that the high court of the judicature is a source of common sense, or (as it often styles itself) a bastion of liberty against the authoritarian behaviour of governments.
The record of the last two periods of Labour government proves the opposite. In 1967, for instance, the judges upheld a decision over schools in Enfield which effectively knocked back the Labour government’s programme to turn grammar schools into comprehensive schools. In 1976, the judges did very much the same over schools in Tameside, Greater Manchester. Much more serious were a series of judicial decisions in the 1970s which laid the foundation for the anti union laws in the 1980s. A decision by the post office workers’ union to stage a one day strike in support of those oppressed by apartheid in South Africa was set aside as illegal by the judges; as were several other actions relating to the strike against the notorious management at Grunwick in north London.
Under the Tories, the judges have been viciously opposed to trade unions and Labour councils. Many of the decisions to sequester the miners’ union funds during the great strike of 1984-85 were extremely suspect, even in Tory law. When, partly in protest against Murdoch’s union busting at Wapping, Labour controlled Derbyshire County Council decided by democratic vote to move its advertising for teachers away from the Murdoch owned Times Education Supplement to The Guardian, the Tories took the case to the High Court where the judges denounced it as contrary to natural justice and ordered the people’s money to be poured back into Murdoch’s coffers. This outrageous decision, wholly unsustainable by any rational legal process, could not be explained in any other terms but sheer class prejudice.
The judges are not elected and they will act in just as a undemocratic and draconian way under a future Labour government. They are drawn from a narrow and secluded band of barristers, the enormous majority of whom come from ruling class backgrounds and who have never at any stage been even marginally independent from the class from which they come.
Last updated on 12.2.2005