Douglas Carswell's Blog

Time to democratise the judges?

Yesterday several hundred protesters stormed a court in Birkenhead and "arrested" the judge. 

Challenging the authority of a court like that is wrong. However, it does raise an interesting question; on whose authority does a judge preside?

The simple answer is the Crown's.  Those we elect determine the law.  Judges adjudicate on the basis of primary legislation and common law.

But two things have changed. 

First, judges are increasingly adjudicating not on the basis of what the law says, but what they believe it ought to say.  The judiciary defined the doctrine of judicial review in the 1980s, making some ministers seem more answerable to the courts, than to Parliament. Increasingly judges adjudicate on the basis of all manner of international charters and loosely worded conventions. 

If judges give up adjudicating on the basis of what those we elect have enacted, people in Birkenhead and elsewhere are likely to challenge both their judgements, and their authority to make judgements too.

At the same time, society's expectations are on the move. Just as the printing press redistributed power outwards and downwards in early modern Europe, the digital age today is changing people’s idea of authority. It is not just those who make the law that people want to hold to account, but those who enforce it and hand out judgements on the basis of it.

Democratic legitimacy – rather than one based on custom, precedent or any supposed expertise – is becoming paramount. 

Next May we will get the chance to elect a Police and Crime Commissioner – or Sheriff – in each locality. How much longer can we justify having a remote and unaccountable Judicial Appointments quango appoint judges? Surely we need democratic appointment hearings?

One of the key demands of the radicals at the time of the English Civil wars was that the townsfolk, not the King, should appoint local magistrates.  It seems that the spirit of English radicalism is alive and well in Birkenhead.

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