It’s Time to Make Judges Accountable Again

One of the most infuriating phrases in the English language is ‘the rule of law’. Properly understood to simply mean that public bodies should not act in excess of their powers, it is nowadays more frequently invoked as a shroud to drape around the judiciary in a manner akin to the Wizard of Oz. ‘Pay no attention to that man behind the curtain!’ we are warned. ‘For to do so is to violate the rule of law.’

Hence, when in January 2025 Sir Keir Starmer – in a rare display of good sense – criticised in Parliament a decision of the Upper Tribunal in an asylum and immigration case, he was castigated by Lady Chief Justice Carr, the head of the English and Welsh judiciary, on the grounds that he had failed “visibly to respect and protect the independence of the judiciary”. The fact that the Prime Minister had been even asked for his opinion about a judgment, let alone that he had given it, was “unacceptable”. And Carr chided MPs accordingly that they “have a duty to respect the rule of law” by refraining from passing comment on the decisions handed down by judges.

Likewise, when in 2022 Parliament’s Joint Committee on Human Rights, chaired by Joanna Cherry QC, wrote to Dominic Raab in an attempt to torpedo his planned reform of the Human Rights Act 1998, it was ‘the rule of law’ which was at the forefront of its concerns. Any attempt to tinker with human rights law, its letter informed Mr Raab, “would result in the UK not complying with its international law obligations”. And “such an approach to the rule of law” would be “out of keeping with British values”.

More recently, the Attorney-General, Lord Hermer, has also been at it. In a speech that was in all respects ludicrious (I may write about it again at some future date), delivered to a crowd of banking gnomes in the City of London on September 16th this year, Hermer warned of “pernicious attacks” being made against “the world’s finest judiciary”. The English and Welsh courts, he told his audience, were packed with “incorruptible judges of the very highest calibre” who merely carry out a “wholly impartial application of the facts to the law”. (I think he meant ‘of the law to the facts’.) And this impeccably independent judiciary, he went on, was “a vital element” in a society “that seeks to uphold the rule of law“.

And who could forget the absurd, pearl-clutching response when the Daily Mail published its now infamous ‘Enemies of the People’ headline after the Divisional Court’s decision in the first ‘Brexit case’, R (on behalf of Miller) v Secretary of State for Exiting the European Union? The list of worthies who lined up to criticise the Mail at that time included none other than Lord Neuberger himself, then-president of the Supreme Court, who likewise issued dark warnings about “undermining the judiciary” and therefore weakening “the rule of law” itself.

The messaging here is as clear as it is crass, and bogus. Don’t criticise the judiciary, we are told. Judges are wholly impartial, incorruptible and pure. And, while we’re on the subject, don’t change any of the post-Blair constitutional settlement either. This is all just law, and you should not question it by bringing up the petty, grubby, malicious concerns of mere politics. The implication is that by suggesting that the legal process is anything other than generative of Truth, and by thereby undermining ‘the rule of law’, one is placing Britain on exactly the same naughty step as other benighted places where the rule of law is not habitually followed: Russia; North Korea; Burkina Faso; Haiti; the dressing room of the Australian national cricket team. And, it follows, the current constitutional arrangements should simply remain ticking on forever in exactly the same neutral, objective and impartial way that they have since 1998, sorry, ‘time immemorial’.

This is insufferable, not least because it is stupid – and it reveals how unthinking and unreflective, as a general rule, lawyers and judges tend to be. If all that judges did was apply law to facts ‘wholly impartially’, then there would be no need for them – people could just resolve their disputes by looking up the answer in a statute book. The reason why judges are needed is because it is arguable how the law should apply to a set of facts, and a judge therefore has to decide the answer in reference to some external set of values other than the rules. This is, inherently, a political exercise. And therefore when people criticise judges they are not undermining the rule of law but merely pointing out that opinions about politics differ.

This means that we should feel altogether less squeamish about calling spades spades. In 1978, the public law theorist John Griffith delivered a famous lecture on ‘The Political Constitution’ that lights the way in this regard. Griffith was an old school Leftist of a type now largely disappeared from the public scene: a socialist who actually believed in socialism and thought that socialist ideas would win through democratic means. And as such he had contempt for all of this stuff-and-nonsense about the rule of law, which he described mostly as a “fantasy invented… to throw a protective sanctity around certain legal and political institutions and principles” which are sought to be preserved. Laws, he said, were “merely statements of a power relationship”, and law was not a “moral concept”. The making and deciding of law was a “political act about which it is… possible to hold opinions”. And it followed that law is a site of conflict – it is not a matter of “truth and beauty” or “justice” or “community morality” or bunk of that sort, but simply of contingent decision-making.

It was therefore the case that judges should be making as little law as possible. Since law is political, it should be being made by politicians who can be voted out and whose reputations can be made to suffer. But insofar as judges are necessary, then they should be criticised in the same way as politicians are. As Griffith put it elsewhere:

Knocking the judicial bench is as proper a political activity as knocking the front bench; both are powerful and can affect our activities.

Both judges and government ministers, that is, are human beings, neither of which have access to much greater wisdom than the rest of us, and – trust me, I’m a legal academic – often, in the case of judges, have considerably less. And yet they take decisions with deep and far-ranging consequences for our lives. Why on earth then should we worry about interfering with their ‘independence’ by pointing out when their decisions are either daft or overtly partisan? And why on earth should we be squeamish about talking about them, and analysing their decisions, as though they were political actors?

We do not have to agree entirely with Griffith politically, or entirely adopt his dismissal of law as ‘community morality’, in order to sympathise with his perspective. Courts in the UK have become more and more important since the eruption onto the scene of a modern concept of judicial review in the early 1980s. Judges have a bigger role in the economic and social life of the country than ever. And this means that their function has become steadily more constitutionally salient. They in short increasingly take on a governmental function – they are properly to be understood as shaping the very form which social relationships may take. And this has given Griffith’s comments fresh pertinence, because we can now grasp their import much more fully.

Let us then at this juncture put a little more meat on these bones. I have written before about the insights of the legal realists in respect of the relationship between law and politics (I would direct your attention in particular to this post and this one), but here let us get down to fundamentals and think about the matter phenomenologically. Why is judging – at least in a modern legal system – a governmental function?

The legal sociologist Alec Stone Sweet, in an important article written in 1999, puts things for us in nicely clear terms. The article, titled ‘Judicialisation and the Construction of Governance’, describes the action of a court as fundamentally “triadic”. Two parties – let us call them A and B – find themselves in conflict. A third party, typically a court, which we’ll call C, resolves that conflict. This, Stone Sweet tells us, does not just put an end to the dispute between A and B – it also serves to ‘construct a form of governance’. C, in giving its decision

performs governmental functions: to generate normative guidance about how one ought to behave, to stabilise one’s expectations about the behaviour of others, and to impinge on ex ante distributions of values and resources.

That is to say, C does not just resolve the conflict but in doing so determines how future such conflicts are to be resolved, and thereby causes all future conduct of all social actors to be shaped by that knowledge. And this, necessarily, will have consequences for how resources are distributed in society. It produces a “normative structure”. And this is political in the most basic sense (though Stone Sweet does not put in quite the same terms as Carl Schmitt might have done): it serves to create a site of dispute. Once a normative structure exists, shaping conduct and causing resources to be distributed in a certain way, there is something for those who do not like the results to argue over. The exercise then is not, never has been, and never will be, neutral. It is constitutive of politics, and politics is about conflict.

To give a brief illustration, earlier today I happened to be re-reading a fairly old case, R (Limbuela) v Secretary of State for the Home Department [2005] UKHL 66, for a formal publication I’m working on. This was a dispute between three claimants, whose cases were conjoined, and the Home Secretary, concerning the interpretation of Article 3 of the European Convention on Human Rights (ECHR). Each of the claimants were asylum seekers who had fallen foul of a statutory regime which forbade them from any entitlement to public funds, or to employment, on the grounds that they had not applied for asylum directly “as soon as reasonably practicable on arrival”. This had led to each of them becoming destitute: sleeping rough and without money.

The dispute in large part hinged on the meaning of Article 3, which says that “No one shall be subjected to torture or to inhuman or degrading treatment or punishment”. The argument of the claimants was that being forced to live in penury on the streets amounted to “inhuman or degrading treatment”. The question for the court, apart from the factual question of whether any or all of the men had been confronting “inhuman or degrading” conditions, was the meaning of treatment. Is “treatment” something which has to be positively done? Or is it possible to ‘treat’ somebody a certain way by not doing something? If the former, then Article 3 had not been violated because all the state had done was not to provide the men concerned with benefits or permission to work. But, if the latter, then Article 3 had on its face been violated, because the conduct of the state amounted to “treatment”.

The court found ultimately that Mr Limbuela and the other claimants had been subject to “inhuman or degrading treatment”. But in doing so, of course, it did not simply resolve the dispute between the claimants and defendant (i.e., the Home Secretary). It created, to go back to Stone Sweet, a “normative structure”: thanks to the decision in Limbuela, it was now the case that a prima facie argument could be made by any asylum-seeker threatened with destitution that he or she is entitled to public funds, accommodation, etc. And this, in turn, had knock-on effects on the entire asylum system in the round – not least because it undercut the deterrent effect which the statutory regime had been designed to create (i.e., don’t come if you don’t have a bona fide asylum claim, because you won’t be entitled to benefits).

But it also had a governmental effect. Giving asylum-seekers benefits and accommodation costs money, and has other effects on the distribution of resources (especially taking into consideration the fact that generosity in this regard likely encourages higher numbers of illegal entrants). It therefore affects social and economic relations in society. And what is true in the relatively narrow case of Limbuela is of course true of any judicial decision, though it is especially pronounced in public law cases. Judging is not just a matter of ‘impartially’ applying rules, in other words, and never can be: it is a governmental function, and it therefore necessarily has political implications whether judges are open about this or not. Even the choice of how to interpret a single word – “treatment” – is of political consequence, and can be objected to in those terms. And as more and more public law decisions are made by courts, their activities become more and more politically consequential yet.

The idea of an impartial and independent judiciary is, then, a phantasm. Judges engage in politics and their decisions have structural import. And the idea of a substantive ‘rule of law’ which is rooted in some objective set of transcendent or universal values that judges consult, is therefore – at least in the absence of very widely accepted religious doctrine – catastrophically wrong. Law is something to be argued over, challenged, disputed, fought against, complained about, rejected, and above all changed. This is because it matters beyond the immediate litigants. It is formative of our economic, social, even familial relations. There are procedural requirements that distinguish it from other forms of decision-making and which help keep everything fair. But otherwise its content, application and effects are rightly up for grabs.

I see it therefore as a positive development that in opposition the Conservative Party is beginning to think – better late than never, I suppose – about how to bring judges under ministerial, which is to say political, control. At the recent Conservative Party conference, Robert Jenrick, Shadow Minister of Justice, stood up and announced that if the Tories were to win the next election they would abolish the Judicial Appointments Commission (a quango set up in 2006, in the dog days of Blair’s premiership, to take charge of who gets to sit on the bench) and return the task of appointing judges to a government minister (i.e., the Minister of Justice) as it was done prior to 2005. This was so, as Jenrick put it, “ultimate power” could be put “back where it belongs, in the hands of Parliament, and ministers” – which is to say, the elected bodies of the constitution. No more behind-closed-doors appointments by the JAC; open and transparent nominations by the government.

The important thing here is that Jenrick made clear that this will also allow the Minister of Justice to sack judges – and thereby, to use Griffiths’ language, make them ‘removable’. The good thing about making political decision-makers removable is that it means they have skin in the game: they are forced to confront the fact that their decisions have consequences. And judges, as political decision-makers, should be no different. If one is to engage in political decision-making, then one should face the political results of one’s decisions and be aware of political considerations. I therefore see the idea that judges should be made to consider how their decisions will play in the mind of the Minister of Justice (who is in turn answerable to the electorate) as entirely welcome in holding them to account. It is simply the natural extension of the observation that their role is in the end governmental, and that it is intolerable in a democracy that somebody should exercise governmental functions without being accountable for doing so.

Of course, not everybody will see things this way, least of all members, or former members, of the judiciary. As soon as Jenrick paused for breath after delivering his conference bombshell Lord Sumption, a former Justice of the Supreme Court, was being wheeled out by the BBC to pontificate on the plans. He – entirely as expected – disapproved. Acknowledging that judicial appointments were being made politically before 2005 and that the sky didn’t used to fall on anybody’s heads in those days, he pointed out that in today’s more “polarised” climate it was likely that the public would see politically appointed judges as “lacking in independence”. He also made the claim, when prompted, that the change would push us more in the direction of the United States, where a “subservient” Supreme Court has allowed Donald Trump to act “like an autocrat”.

It is natural for a man such as Lord Sumption to be defensive of the judiciaries of the UK and snooty about America. But those on the Right of politics will have noted the recent report, issued by the polling companies Electoral Calculus and Find Out Now, which made startlingly clear what all of us have long suspected: the ‘new elite’ is real, and it is a serious problem. According to the report, which surveyed around 2,300 people, the Establishment in the UK – including judges and other legal professionals – votes markedly to the Left of the general public (78% voting for Left-wing parties in the General Election of 2024), and is far more likely by and large to hold anti-capitalist, anti-free speech and anti-Western views. Only 15% of them believe that “capitalism is the best way to create a functioning society”; 42% of them believe that “freedom of speech is often used to hurt minorities and damage society”.

We already, in other words, live in a world in which the judiciary lacks impartiality in any meaningful sense in respect to the issues of the day. And given that what the report calls the ‘lecturing class’, including teachers and professors and necessarily therefore those teaching at law schools, is even more Left-wing than the ‘Establishment’ (83% having voted Left in 2024), we can only expect future generations of judges to have been steeped in a basically Leftist worldview at school and university. The problem, that is, will only grow bigger and more pressing in the decades to come.

Lord Sumption’s ship has, then, long ago sailed. Not only is the role of the judge inescapably political, the judiciary itself has moved steadily Leftwards in recent decades and will, it seems, go steadily further Leftwards yet. This is a recipe for one distasteful cake: a more active and more biased judiciary, and therefore likely more and more lawfare. Given the necessity of major national reform (I use the lower-case ‘r’ advisedly), no serious conservative politician (I also use the lower-case ‘c’ advisedly) should ignore the import of all of this, and no serious conservative movement should fail to plan for drastic action of the type Jenrick is advocating.

Dr David McGrogan is an Associate Professor of Law at Northumbria Law School. You can subscribe to his Substack – News From Uncibal – here.