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The Financial Times
Indictment over missed opportunity: Conservatives are unhappy over the promotion of liberal judges to top jobs, says Robert Rice. 25 May 1996
By tradition, senior judicial appointments are meant to rise above party politics. But yesterday's announcement that two of the country's most liberal-minded judges are to fill the top jobs in the English judiciary has alarmed many Conservative politicians and lawyers.
The reshuffling of the judicial deck comes at a time of unprecedented friction between the judiciary and the government following a series of court decisions challenging ministerial decisions. With liberal judges already dominating the law lords, Britain's supreme court, the right fears further attempts to extend the judicial scrutiny of the executive and block Conservative measures.
One QC on the Bar's governing council, who did not want to be named for 'political reasons', said: ' Labour has never appointed a Lord Chief Justice - they have all been appointed by Conservative administrations. The irony is that Bingham and Woolf are absolutely the people Labour would have appointed had they been in power.'
The two appointments were precipitated by the early retirement on grounds of ill-health of Lord Taylor, Lord Chief Justice. His successor as head of the English criminal justice system is Sir Thomas Bingham, the Master of the Rolls and thus head of the English civil justice system. Sir Thomas, 62, is succeeded by Lord Woolf, the law lord who conducted the inquiry into the 1990 riot at Strangeways prison in Manchester.
The new Lord Chief Justice is known for the great importance he attaches to the protection of the rights of the individual. He has long been an advocate of a British Bill of Rights, based broadly on the European Convention on Human Rights - an idea long opposed by Conservatives as contrary to the British tradition of an unwritten constitution.
In a speech at the National Liberal Club this week, Sir Thomas called for a new privacy law - a proposal debated and rejected by the government on several occasions. His preference was for legislation but he warned that if parliament would not act, the courts would.
He also believes in a strongly independent judiciary which must not be scared to intervene when governments step over the mark and abuse their powers.
'He has very clear ideas about the need to balance the power of the executive on the one hand and the rights of the individual on the other,' says Mr David Penry-Davey QC, chairman of the Bar.
Sir Thomas will have a strong ally in Lord Woolf, 63, seen by many as the father of judicial review. The leading administrative lawyer of his generation, he was involved as advocate or judge in many of the landmark cases extending the courts' powers to vet ministerial decisions.
But the judiciary's increasing willingness to challenge ministers is seen by many on the right as an attempt to reverse Conservative policies. Mr Michael Howard, home secretary, has suffered several rebuffs from the courts in his efforts to introduce tougher law and order measures - for example, when his new criminal injuries compensation scheme was overturned in early 1995 for his failure to consult parliament.
Conservative MPs were particularly incensed at the ruling at the end of 1984 that Mr Douglas Hurd, foreign secretary, had acted unlawfully in using the overseas aid budget to fund the Pergau Dam in Malaysia. At a private weekend gathering of judges and lawyers soon afterwards, Sir Ivan Lawrence QC, the Conservative MP who chairs the Commons home affairs committee, launched a bitter attack against the judges for being too political.
Lord Woolf's response was to warn politicians that the courts would reject any attempt to abolish the courts' powers of judicial review. 'I would consider there were advantages in making it clear that ultimately there are even limits on the supremacy of parliament which it is the courts' inalienable responsibility to identify and uphold,' he said.
The only comfort for the government in the new appointments is that they might take the heat out of the row between the judges and the government over the home secretary's 'three strikes and you're out' sentencing proposals.
Lord Taylor used his valedictory speech to the Lords on Thursday to attack Mr Howard's plans to impose minimum sentences for crimes of violence as a threat to the independence of the judiciary.
Sir Thomas said recently that while such sentences had not worked in the US, they did not threaten the independence of the judiciary.
'As parliament can prescribe a maximum penalty without infringing the constitutional independence of the judges, so it can prescribe a minimum,' he said.
However, he may not be able to carry the rest of the judges of the criminal division of the Court of Appeal with him on the issue. His only experience of criminal cases was as a recorder (part-time judge) in the crown court during the late 1970s. Most of his career has been spent at the Bar and later on the bench dealing with civil cases. He led the UK inquiry into the Bank of Credit and Commerce International, which collapsed with debts of Dollars 14bn in 1991.
'It's a sorry reflection on the state of the criminal bar and the criminal bench that they are appointing a Lord Chief Justice who has no experience of crime,' says one QC.
Lawyers have other concerns about the two men. Barristers, for example, are unhappy that the new Lord Chief Justice is the only senior judge to have openly supported the end of their monopoly on advocacy in the higher courts. And solicitors fear that Lord Woolf's almost-completed review of civil justice will drive many smaller practices out of business.
However, what rankles with many Conservative lawyers is the government's failure to appoint someone sharing their views to these senior positions. They concede that there is an absence of suitable candidates on the right. Lord Justice Rose, considered the most convincing 'Conservative' candidate for Lord Chief Justice, had 'shot himself in the foot' - as one critic puts it - by his outspoken opposition to Mr Howard's sentencing plans. The same critic describes the two appointments as a 'missed opportunity' to influence the thinking of the judiciary for the next 10 years.