A former Conservative leader has launched an extraordinary attack on the judiciary, claiming that senior judges sometimes “distort” the law they interpret in order to reach their desired outcome.
Singling out the explosive Supreme Court verdict that ruled Boris Johnson’s suspension of parliament was unlawful, Michael Howard said they had “substituted their own view” for the view of parliament and ministers.
He also described the current process of appointing judges as a “self-perpetuating judicial oligarchy” and called for the the lord chancellor to be given the final decision in the selection of senior judges.
Lord Howard, who led the Tories between 2003 and 2005, made his remarks as the outgoing president of the Supreme Court, Lady Hale, warned against any attempt by government to “politicise” the appointment of judges.
The row comes amid fears that the power of the Supreme Court could be curbed by the prime minister after the Conservative manifesto made a vague reference to examining the relationship between the government and the courts.
In an interview on BBC Radio 4’s Today programme, Lord Howard, an unelected peer, questioned whether the law should be made by “elected, accountable politicians, answerable to their constituents and vulnerable to summary dismissal at election, or by unaccountable, unelected judges who can’t be removed”.
“What we’ve seen in recent years is a very considerable increase in the power of the judiciary, partly as a result of the expansion of judicial review,” he added,
“Partly because they were invited by parliament under the Human Rights Act to enter the political arena by considering, for example, whether the measures that parliament had taken to deal with a particular problem were proportionate to the objectives they wanted to achieve.
“So, those two things have led to a significant increase in the power of the judges at the expense of parliament and indeed government.”
He continued: “Sometimes in order to reach the result they want to achieve, they, I don’t think this is too strong a word, distort the meaning of the Act of Parliament of which they are interpreting.”
Lord Howard also criticised the decision of the Supreme Court earlier this year that Mr Johnson’s decision to prorogue parliament – just weeks ahead of the 31 October Brexit deadline – was unlawful.
“Prorogation was clearly, of any ordinary view of the language, a proceeding in Parliament,”he told the programme.
Asked if the Supreme Court’s ruling was a political act, he replied: “I think that judges have increasingly substituted their own view of what is right for the view of parliament and of ministers.”
Describing the current appointment of judges, Lord Howard added: “I think now what we have is… it could almost be characterised as a self-perpetuating judicial oligarchy. I think there does need to be some change.
But speaking on the same programme on Friday, Lady Hale rejected the suggestion the UK’s highest court had overstepped the mark during the ruling on prorogation. “The courts from time to time tell governments or public authorities that what they do want to do is no lawful,” she said.
On the appointments of senior judges, Lady Hale continued: “We do not want to turn into the Supreme Court of the United States, whether in powers or in process of appointment.”
“I don’t know what would happen – I do know that there is no member of the judiciary, or indeed most of the legal profession, who would favour the politicisation of judicial appointments. We have an independent, merit-based appointment which most of us are extremely comfortable with.”