Judges vs the Government

As the Government seeks to defy Nolan, the battle between the executive and the judges is now more intense than at any time in recent history. Stephen Ward reports

It used to be easy to caricature judges. They were reactionaries, they were Establishment, they never doubted the evidence of the police, they were so out of touch they didn't know who the Beatles were, and come hell or high water, they would back a Conservative government.

None of those truisms has shifted as much as the last - the two institutions are now at each other's throats. No Home Secretary has been as much criticised in judgements as Michael Howard. This week again he has been found to have acted beyond his powers by barring the head of the Moonies without hearing the latter's side of the story first. Today the Government's policy banning gays will be judged by the Court of Appeal, and judges have already warned the Government that it will face yet another defeat in the Court of Human Rights in Strasbourg if it doesn't back down.

The Tories have started to hit back - Michael Howard has taken on the judiciary by saying the Government will remove some of their discretion on sentencing. The senior judge, Lord Taylor, the Lord Chief Justice, told him he had no right to interfere.

Greater than all these is the Nolan inquiry. It began as a very traditonal fudge - John Major, in time-honoured tradition, thought he could bury sleaze by appointing a Law Lord, Lord Nolan, to investigate it. It had been done time after time with thorny problems like electoral reform or where to site an airport. Appoint a commission chaired by a judge and wait a couple of years for the report, confident that it would say little. And even if it did rock the boat a little, it could always be ignored.

Nolan and Scott have been different. When the Prime Minister established the Nolan committee in October 1994 he said he wanted an "ethical workshop to provide running repairs on standards in public life". Lord Nolan and his colleagues quite deliberately chose to stretch their terms of reference, and in its recommendations went far beyond what John Major could have expected, by insisting that the answer to sleaze allegations was for MPs to publish their outside earnings. The Tory party was aghast, and has refused.

So far we have a stand-off; Nolan has become a test of the relative credibility of the judiciary and the Government, and it is far from clear that the Government in its present state can see Nolan off.

Sir Richard Scott's inquiry threatens to blow up in an even bigger way when it reports later this year. Appointed to make the arms for Iraq affair go away, the judge has, like Lord Nolan, felt confident enough to interpret his brief widely. Minister after minister faced a cross-examination from his talented QC, Presiley Baxendale, far more searching than anything they had faced in the Commons. Again, to the horror of politicians, they found themselves cast in the role not of expert witness, but sitting in the dock. They must feel threatened by the imminent report of his findings and a vague sense of betrayal that they are being turned over by what they had hoped would be one of their own.

The outcome of the contest between politicians and the judiciary remains unpredictable. As the credibility and authority of politicians has waned in many democracies, so the power of the judiciary has correspondingly tended to rise. In Italy, for example, government has fared even worse. Parliament has been deeply undermined by a series of corruption investigations by judges. In the United States, even with a new mandate, President Clinton found he lacked the clout to bring in a state health service, or to allow gays in the army. In Britain, governments have been winning a smaller share of the electorate, and party loyalties have been weakening steadily for 30 years or more. Assuming people want somebody they can look up to and trust, there is a vacuum that judges have been able to step into.

The British judiciary has enhanced its capacity to do this by seeking to change, in the space of a few short years, virtually every negative element of the traditional judicial stereotype.

The position of Lord Mackay is central in this change. His predecessor, Lord Hailsham, was an hereditary peer and politician. Lord Mackay is different. He told the BBC's Joshua Rozenburg that he had a duty to decide cases "applying the law and free from improper pressure".

Lord Mackay is the target of the current Tory backbench backlash over divorce legislation and the now abandoned law against domestic violence. He is both a member of the Cabinet and the head of the judiciary. And he has found himself squeezed between his twin constitutional roles, now being made a scapegoat in the attempted revenge of the politicians.

Mackay has been crucial in the appointment of a new kind of judge. He recommends appointments to the Prime Minister and he has chosen some the most liberal ever, including the latest Law Lords (notably Lord Nolan). In 1985 he abolished the ban on judges making public pronouncements. Three years ago the top men in the judiciary retired. Out went the Lord Chief Justice Lord Lane and in came Lord Taylor as the senior judge. Out went Lord Donaldson, Master of the Rolls and top civil judge, and in came Sir Thomas Bingham. Each man was 13 years younger than his predecessor. Lord Taylor was not exactly a man of the people, but as a grammar school boy from Newcastle-upon-Tyne, he was not of the traditional establishment. Happy to give interviews to the press and comfortable talking to ministers, he cut a new kind of figure as the chief judge.

This new generation of judges, including Mr Justice Sedley who gave judgement on Mr Moon, have been responsible for a series of judical reviews of ministerial decisions which have criticised government ministers. John Patten, as Education Secretary, was told he could not force shcools to carry out his tests. Michael Howard has been repeatedly criticised over immigration, over parole, and over his Criminal Justice Act and its effect on travellers.

Meanwhile, the Government also keeps falling foul of The European Court of Human Rights in Strasbourg. To the beleaguered Government, it seems like part of the same conspiracy.

Even Law Lords, traditionally the ultimate caricature of a judge, have produced some extraordinarily liberal decisions. The lords have increasingly taken decisions to protect individuals against the powers of government and large institutions. Last April Michael Howard (again) was forced to abandon a new scheme for criminal injury compensation after the lords ruled he had exceeded his powers by failing to consult Parliament.

It is not that judges have suddenly become political subversives, they are just doing what they have always done, and are trying to uphold the rule of law. It is more that the Government has passed laws that erode human rights, brought in sloppily drafted legislation and attempted to use laws for things for which they were not intended. It is their own fault that a Conservative government is in an unprecedented conflict with the judiciary.

Who are the judges?

Lords of Appeal in Ordinary (Law Lords)

Earn pounds 114,874.

They hear cases in the House of Lords, the final court of appeal for criminal and civil cases. All 12 are men.

Divisional Heads

Earn pounds 110,000-pounds 124,000.

The Lord Chief Justice, the senior judicial officer in England and Wales, who heads the Queen's Bench Division of the High Court and the criminal branch of the Court of Appeal, earns pounds 124,138. The Master of the Rolls, who heads the civil branch of the Court of Appeal, earns pounds 114,874. The President of the Family Division earns pounds 110,137. The Vice-Chancellor, who heads the Chancery Division and is in charge of legal financial matters, earns pounds 110,137. All are men.

Lords Justices

Earn pounds 110,137.

Together with the Lord Chief Justice and the Master of the Rolls, they are judges of the Court of Appeal. There are 31 men and one woman.

High Court Judges

Earn pounds 98,957.

The High Court, based in London, is divided into three divisions: Queen's Bench, Chancery and Family. There are 89 men and six women.

Circuit and District Judges

Earn pounds 59,000-pounds 85,000.

Most crown court work is done by circuit judges. There are 480 men and 30 women, of whom four come from ethnic minorities. District judges work with circuit judges in county courts. There are 286 male and 32 female district judges, of whom two come from ethnic minorities.

Who are the Government?

Cabinet Ministers

Earn pounds 60,819, and receive an allowance for office costs of pounds 42,754.

They head government departments and are members of the Cabinet. There are 21 men and two women. About 55 per cent went to public school followed by Oxbridge; 9 per cent went to Eton.

Ministers of State

Earn pounds 30,307-pounds 48,835, and receive an allowance for office costs of pounds 42,754.

They act as deputies to cabinet ministers. There are 27 men and one woman. About 58 per cent went to public school followed by Oxbridge; 22 per cent went to Eton.

Parliamentary Under-Secretaries of State

Earn pounds 41,065, and receive an allowance for office costs of pounds 42,754.

There are 29 men and three women. About 50 per cent were educated at public school followed by Oxbridge; 10 per cent went to Eton

Back-benchers

Earn pounds 33,189 and receive an allowance for office costs of pounds 42,754.

Many back-benchers earn more than pounds 100,000, excluding office cost allowance, through other outside earnings. There are 231 men, of whom one is Asian, and 12 women. The 200 backbenchers hold a total of 276 paid directorships of companies and 356 paid consultancies. Douglas Hurd gets pounds 250,000 a year for his directorship of NatWest, and Sir Norman Fowler earns pounds 120,000 through directorships and chairmanships.( Table omitted)