The Bar Council’s Manifesto For Justice is a curious document. It makes some good points but is incoherent. It calls for respect for judicial independence and a legally-trained Lord Chancellor, but makes no mention of restoring the Lord Chancellor’s Department.
The LCD respected judicial independence, as I well remember, as it was still in existence when I started sitting. Judicial independence effectively went however in 2003 when Tony Blair caved into Cabinet Office pressure to scrap the LCD and created the Department for Constitutional Affairs. In 2007, it was given the Orwellian-sounding name of “Ministry of Justice”. No doubt the BBC will shortly be renamed the Ministry of Truth!
The MoJ effectively reports to the Cabinet Office. Since they also control the police and the CPS, we have a massive concentration of power in Whitehall.
With respect, the Bar Council does not appear to understand how this country is actually governed. Responsible ministerial government was abolished by the Court of Appealin 1943, in the notorious Carltona case, where a decision taken by a civil servant behind the back of the minister was rubber-stamped using reasoning which was thin even by the standards of the Court of Appeal, no offence intended.
The courts have since watered down ministers’ powers even further. In Castle v DPP (where I was counsel for the appellant), the Divisional Court, with respect, rubber-stamped a motorway closure order issued by a junior regional official which the minister never even saw. Ministers are now mere figureheads. This blew up in the government’s face with the semi-demented dementia tax, a proposal which was doubtless foisted on the Tories by pro-EU officials.
Control of the personnel files is key to safeguarding the independence of the judiciary. The files, some of the most sensitive in Whitehall, fall into two broad categories– the ‘wet’ files, as they are known in the Intelligence Community, and the financial files. The‘wet’ files are held on judges whose interest in correction, e.g., is not confined to perusing the publications of the Sentencing Guidelines Council. Whilst the activities of the judges in question might not raise too many eyebrows these days, divorce is expensive.
Rather more judges than you might imagine get into financial difficulties and have to be bailed out, discreetly of course. This gives the Cabinet Office a permanent hold on them. It’s not necessary to lean directly on the judge,indeed that can backfire. He or she will usually know what to do without being told. (Bribery doesn’t work of course, especially if you only offer Cyprus prices.)
Major foreign players know this. The British legal system is not held in quite the high esteem the Bar Council thinks it is. I well remember fielding a call from Washington about a judge who had given a particularly astonishing ruling in a terrorism case.
Calling for a legally qualified Lord Chancellor, whilst sensible, is meaningless without calling for the abolition of the MoJ. Even after abolition, it will take at least a decade for the compromised judges to retire. The Cabinet Office won’t give up the files without taking copies.
The Bar Council’s manifesto is left-wing as well as being constitutionally-illiterate, with respect. They have fallen for dodgy figures knocked out by pro-immigration NGOs asserting that half of those in immigration detention shouldn’t be there. In reality many detainees are not even documented and almost all are immigration offenders.
Unsurprisingly, given its stance on Brexit, the Bar Council expresses its support for the dangerous European Arrest Warrant. We should go back to proper extradition arrangements, requiring the requesting state to prove a prima facie case, with actual evidence. With respect, the Bar Council should not be having any truck with extradition requests from foreign governments wholly unsupported by evidence.
There is nothing in the manifesto about withdrawing from the European Convention on Human Rights, nor about restoring faith in the criminal justice system by bringing back capital punishment. The Bar Council with respect seems to want a weak legal system, subject to malign foreign influence.
The British legal system used to be the envy of the world. It isn’t any longer, indeed in many respects, even down to the robes senior judges wear, it is no longer even recognisably British. In cases like that of brave Sergeant Blackman RM, outrageously convicted of homicide without a shred of medical evidence, in a case where no autopsy was ever performed, it has appeared to be actively anti-British.
Until confidence in our legal system is restored, there is unlikely to be much public support for spending more money on courts or lawyers, admirable though these aims may seem to lawyers. Public support for the legal aid system has been forfeited by wasting money on meritless claims by foreign nationals in immigration cases, time-wasting human rights claims and politically-motivated, bad-faith claims against British service personnel.
The Bar Council failed to speak out against legal aid abuses when it mattered and must accept the political consequences, sadly. The argument now is about how to dismantle the system, not how to reform it.
Another area where the Bar Council has failed to speak out is over historic sex allegations, where the rights of defendants have been reduced almost to nothing. The recent, entirely predictable, collapse of the second Rolf Harris trial suggests that juries have finally sickened of the sight of frail, elderly men being dragged before the courts for alleged crimes that the self-styled victims did not think worthy of reporting at the time. If the Bar Council’s professed concern for the rule of law were genuine, with respect, it would be calling for a statute of limitations in sex cases. Six years is long enough, surely, to decide whether or not you’ve been raped.
A barrister is judged on the quality of his or her arguments. With respect, it is a pity that a body representing barristers could not have come up with a manifesto possessed of greater intellectual rigour.