Like all right-minded people I was appalled by the newspaper headlines last week attacking the judges who made the Article 50 ruling. To suggest that members of the judiciary are ‘enemies of the people’ simply for doing the job we pay them to do is not just wrong, it is extremely dangerous. It threatens to replace the rule of law with the rule of the mob.
I don’t propose here to enter into a detailed discussion about why we must condemn this attack on the judiciary – that has already been done by lawyers and others who are far more learned and eloquent. Instead, I want to concentrate on one consequence of the attack: the way that it encourages the culture of judicial bias.
I have written here previously about the issue of judicial bias. It is an allegation that is often raised in the family law context. Sometimes the person making the allegation is simply saying that the judge is biased against them. More often, the allegation is that the family courts are biased against wives, or against husbands, or against fathers.
The phenomenon of alleging that courts are biased is of course nothing new. I’m sure that allegations of judicial bias have been around as long as the courts themselves. However, there are at least three factors that seem to me to be increasing the incidence of this dangerous issue.
The first factor is the Internet. Social media, discussion forums, blogs and other sites provide an outlet for the disgruntled quite unlike anything that has gone before. They can get their warped message out to like-minded people with a speed and a reach that spreads that message like wildfire, putting it into the minds of others that are only too happy to leap upon the bandwagon. The Internet is a wonderful thing, but a user seeking help can only get its full benefit if they are capable of distinguishing between good advice and bad. Sadly, the peddlers of bad advice know only too well how to prey upon their victims, with easy answers to difficult problems.
The second factor is the increased incidence of litigants in person, since the legal aid cuts. Without the guidance of a lawyer, many litigants in person who find things are not proceeding as they wish are only too happy to allege judicial bias, rather than look for the real reasons why things are going against them. Sometimes, I suspect, this is just a kneejerk reaction to a decision that has gone against them. On other occasions, fed by an understandable ignorance of the law, it can be a complete strategy leading, inevitably, to disaster.
And the third factor is the one I have already mentioned: the encouragement from certain sections of the media (and others, many of whom, such as certain MPs, really should know better) to challenge the courts and judges on the basis of bias. Imagine how a litigant in a family case in which a decision has gone against them is likely to react to the sort of headlines we saw last week. It’s so easy isn’t it: that decision wasn’t made because the court considered it was the right thing to do having regard to the law, it made it because it was biased against me! If the national newspapers say that this is how the courts operate, then it must be true.
The attacks on the judiciary also of course encourage disrespect for the judiciary generally, thus further fuelling the idea that judges are not to be trusted to make unbiased decisions. For example, we saw last week and over the weekend the most disrespectful media examinations of the backgrounds and personal lives of some of our senior judges, suggesting that they had or have a vested interest in a certain outcome to the Article 50 case.
Following on from that, the apologists for the attacks say that judges are only human and that it is impossible for them to reach decisions that are not in some way tainted by their own views. This can be a very persuasive argument. However, I think it displays a misunderstanding of the judicial mind. Yes, I’m sure that it can happen, and greater judicial diversity would no doubt help to alleviate the problem, but the very best judges are quite capable of impartiality, even if it means coming to decisions that may be contrary to their views.
Whether you like the decisions they make or not, the fact is that you must respect the judiciary and the decisions they make, and the reason for this is quite simple: the alternative is too awful to contemplate. The courts represent the rule of law, ensuring that the law (which, remember, is made by a democratically elected parliament) is adhered to. Without the rule of law there is anarchy.
Encouraging the judicial bias culture is both disastrous for the individuals persuaded by it, and dangerous to society generally. It must not be allowed to go unchallenged.