At war over the law

An uncompromising Home Secretary and a blunt-speaking Lord Chief Justice are at loggerheads. Heather Mills explains why

There is now open warfare between the judges and the Government over the criminal justice system.

The judiciary, once signed-up members of the Establishment, have accused John Major's government of introducing a flood of hasty, ill-conceived and contradictory legislation. Ministers are in the dock, charged with subjecting the law to "arbitrary change and the vagaries of fashion"; and worse, impeding justice. If that is not enough, the judges have told the ministers flatly: their proposals will not work.

Judges stand accused by ministers of giving too many lenient sentences, thwarting their so-called fight against crime, and interfering in policy.

These are uncharted and dangerous waters. Never before in recent history have judges so damagingly and publicly voiced their views outside the courtroom - forcing ministers on to the defensive.

So why are they doing it now? The reasons are threefold. First, they are now able to speak out publicly, since rules maintaining their silence were relaxed in 1987. Second, they are headed by a Lord Chief Justice, Lord Taylor, who is prepared to speak out so bluntly on their behalf. (Lord Lane, his predecessor, was known to have seethed silently.)

Third, and fundamentally, judges - at least the "new" intake of younger, more liberal-minded judges - guard their independence from government jealously. And it is the constant attachment of yet more fetters on their discretion to administer justice that has most upset them.

What has brought matters to a head are the latest proposals by Michael Howard, the Home Secretary, to impose minimum sentences for repeat violence and sex offenders, and drugs dealers. At one time politicians frequently exercised their right to set parameters for judges' sentencing. But these powers were abolished around the turn of the century. Since then, sentencing has been left to judges - with the notable exception of the mandatory life sentence to replace the death penalty.

"Never before has a government introduced politics into sentencing," says one judicial insider. "Judges have long been unhappy at the crumbling justice system they see around them, but with one or two notable exceptions have largely kept quiet. Over this fundamental issue, they feel they have no option but to speak out."

The judges' desire to go public has coincided with their changing role as law-makers in our unwritten constitution. The "new" judiciary are perceived as far more liberal, increasingly called upon - and unafraid - to protect the citizen against the state, as witnessed by the increasing use of judicial review to check ministers' powers. Howard happens to be the minister who has most often fallen foul of the courts.

The consequences of this war for society are serious. We need faith in the lawmakers - government and judges - who set the rules that bind our social fabric, protect the individual and guarantee order.

The Lord Chief Justice has warned that what judges see as a rash of crude legislation (as many Criminal Justice Acts in the past six years as in the previous 60) is endangering public confidence in the system. And since the stream of notorious miscarriages of justice in the late 1980s, confidence is already diminished.

Nothing could be undermining public confidence more than having the judiciary and executive pulling in different directions.

The only hope is that Howard's new sentencing proposals do not get on to the statute book before an election. He has yet to publish his White Paper and he may run out of parliamentary time. This would let him off two hooks: the continuing and fundamental row over judges' discretion in sentencing; and an explosion in the already bursting prison population that he would not be able to contain.

The British Constitution: a missing document

Where other nations spell out the fundamental principles upon which their laws are founded, the British Constitution is unwritten. British common law consists of long-established custom. Statutory law is set by Parliament. Judges establish law through precedent. No single document gathers all these together, and no single group can lay claim to autonomously controlling the law-making process.

Convention places the long-established principle of separation of powers at the heart of the constitution: the executive, legislature and judiciary may not exert excessive influence on each other. Some members of the judiciary argue that politicians, most chiefly the Home Secretary, Michael Howard, are now undermining this central principle.

Howard's proposals

Michael Howard took up the Home Office brief in May 1993, dubbed the most right-wing Home Secretary for 30 years. Encouraged by Labour's shift to a tougher stance on law and order, he has been anxious to pursue a "prison works" policy, introducing measures that have seen the prison population rise by more than 10,000, to a record level of 53,357.

Howard shares the same legal background as Lord Taylor, once having been regarded as a superb barrister - but as Home Secretary he has fallen foul of the courts more than any other minister.

The main areas in which the two men differ are:

Proposals for tougher minimum sentences: Howard maintains that the aim is to protect the public from persistent and dangerous criminals. He says that violent and sex offenders rarely get the maximum sentence of life and are released without supervision, even though they may pose a threat to the public.

Mandatory life sentence for murder: Howard maintains that without a death penalty for murder, public condemnation of this "uniquely heinous" crime can only be reflected in an unique sentence: the mandatory life term. This argument is weakened, judges say, by his plans for mandatory life sentences for other crimes.

Too much legislation: Howard has been anxious to fulfil his wide-ranging promises to the Tory party faithful in 1993 to crack down on crime and criminals. He has been pursuing that through a range of legislation ever since. He maintains that his top priority is to protect the public, and makes no apologies for the changes he says are necessary to achieve this.

Sentencing philosophy: Part of those changes involves a swift U-turn to reverse the policies of his Tory predecessors, which sought to take petty offenders out of jail but which he saw as "soft on crime".

Right of silence: One of the most controversial moves was the abolition of the centuries-old right of a defendant to remain silent. Juries now can infer guilt from defendants' silence.

Revealing previous convictions: The fact that many defendants - sometimes those accused of rape - have been acquitted when their history might suggest a pattern of offending has led Howard to review the ban on juries knowing of defendants' previous convictions.

Jury trial: The collapse of a series of complicated fraud trials has led to calls for the right to jury trial to be abolished in some cases and replaced by judges sitting with an expert panel.

Prisons: Howard makes no apologies for pursuing a criminal justice policy that has seen an explosion in the prison population. He argues that the rise in prison numbers has led to a fall in recorded crime.

Honesty in sentencing: Howard proposes in a forthcoming White Paper to introduce "honesty in sentencing", making prisoners serve nearly the whole of their sentence, rather than halving long periods on remission.

Taylor's criticisms

Lord Taylor, the Lord Chief Justice, is the head of the Court of Appeal, and the UK's most senior judge. He was appointed by the Queen in 1992 on the recommendation of the Lord Chancellor, who took "confidential soundings" among other senior judges, and he speaks on their behalf.

As his recent attacks on the Government have shown, he pulls no punches. He rose swiftly through the legal ranks, and is highly regarded for his incisive mind and independence. He is very influential in the House of Lords, and presents a powerful enemy for Howard. He can only be fired if both Houses of Parliament agree.

His chief areas of disagreement with the Home Secretary are:

Proposals for tougher minimum sentences: Lord Taylor is gravely opposed to a planned White Paper which will see mandatory life sentences for repeat rapists and stiff minimum terms for burglars and drugs dealers. He believes that they will lead to injustice, because the same sentence will apply in all circumstances. They will clog up the courts by removing incentives to plead guilty. They might also make violent offenders, knowing they face life sentences, murder their victims.

Mandatory life sentence for murder: Lord Taylor believes that it should be abolished so that judges could distinguish between the battered wife who kills her brutal husband and a mass murderer.

Too much legislation: Lord Taylor feels that a torrent of hasty legislation is undermining public confidence, and is having to be amended and reformed through Parliament and the courts.

Sentencing philosophy: In the past four years sentencing policy has swung from one extreme to the other. The 1991 Criminal Justice Act declared that prison was an expensive way of making bad people worse, and sought to divert non-serious offenders. The 1993 and 1994 Acts have pursued a "prison works" theme. Lord Taylor wants consistency.

Right to silence: Lord Taylor insisted that Howard's removal of this centuries-old right should be watered down.

Jury trial: The Lord Chief Justice sees jury trials as the cornerstone of the British criminal justice system.

Revealing previous convictions: Lord Taylor is firmly opposed to telling a jury about a defendant's criminal record because it would "give a dog a bad name".

Prisons: Lord Taylor does not believe that a longer time inside will deter habitual criminals. "What deters them is the likelihood of being caught, which at the moment is small."

Honesty in sentencing: Lord Taylor supports the moves. He has also stood behind the Government on restricting the right to silence (although he diluted its effects); limiting the amount of evidence to be disclosed to the defence; and changes to the law governing corroboration.