the British judiciary is one of the most corrupt in the world because of politically active judges. – May 1986
In comparison Lord Neuberger of Abbotsbury uses well nuanced euphemisms to gloss over judicial activism to the Bar conference (in Nov 2008) :-
1) The judiciary needed to provide a ‘balancing role’ to the increasing control the legislature and executive have enjoyed
2) Judges have ‘filled the vacuum’ caused by a lack of effective opposition to the party in power for 30 years and a powerless local government.
3) A welter of badly drafted legislation has encouraged ‘judicial intervention’
4) The sclerotic condition of much of the executive and its obsession with procedures rather than outcome required judges to be more interventionist
5) Judges are ‘allowing’ European law to assume an unspoken priority over common law
Notwithstanding the euphemisms it is evident that unaccountable judges, instead of legislators are making and repealing laws and internationalising law as well. They have clearly overstepped their bounds and agendas which are often at odds with the majority of those they claim to serve. The rule of law has been replaced by judicial rule and the democratic process has been usurped. When the legislative and executive arms of government are stymied and decimated by a supremacist judiciary then democracy is replaced by tyranny and totalitarianism .
Fortunately Lord Neuberger recognises the dangers of judicial activism. He argues that there is more need of democratic legitimacy, political scrutiny and accountability and he suggests something along the lines of the US Supreme Court hearings. I would prefer an IJSC (independent judicial scrutiny commission) that did not include practicing judges or lawyers (and included 50% lay people).
The Judges Background
In the past no attention has been paid to the spiritual or cultural background of those appointed to the Bench although Jack Straw did try, rather half-heartedly , to “out” the Freemasons in the judiciary. Pan-European changes in the political and ideological climate of the legislature (to a secular/cultural Marxist state) and judicial activism are resulting in major tensions between the church and judiciary especially in cases that hinge on the appellants spiritual/religious beliefs or conscience (manifest in the work place). Christians , Roman Catholics , Muslims and even States are finding themselves in court for manifesting their faith or conscience in the workplace. Judges are being asked to rule in cases that hinge on belief, conscience and ideology for which they are not trained and may well be personally or politically biased.
Political commentators are beginning to argue that we cannot continue to ignore the religious or ideological beliefs of our judiciary and that their beliefs may in some cases, justify recusal
In this context Locabail (UK) Ltd v Bayfield Properties Ltd and another –  All ER (D) 241 is often mentioned because a specially convened Court of Appeal bench considered grounds for recusal. They concluded that
We cannot, however, conceive of circumstances in which an objection could be soundly based on the religion, ethnic or national origin, gender, age, class, means or sexual orientation of the judge
This statement lacks credibility because the case did not hinge on the Judges, plaintiffs or defendants beliefs and because it was not conducted by an independent body it lacks democratic legitimacy, accountability, and independent scrutiny. It was an endogenous self-serving ruling that militates against transparency in the exercise of judicial function.
The Judicial Oath
The oath that Judges swear beggars belief. They swear
“that they will do right to all manner of people after the laws and usages of the realm, without fear or favour, affection or ill will”
It clearly needs to be reviewed. It is ambiguous and spineless lacking any moral basis, ethical basis, rigour or gravitas. It is clear that in two recent cases the Judges ignored their oath as they did not “do right to all manner of people” (i.e the Christian appellants who lost their jobs for manifesting their beliefs in the workplace) and they clearly favoured the ideology of the legislature. This oath is clearly untenable if Judges are making the laws themselves and their findings are tainted by judicial activism.
The oath makes absolutely no provision in situations where Judges in doing right/favouring one party are failing to do right to another party.
Fairness not Favours
Nick Clegg is encouraging us under the aegis of his “Your Freedom” initiative
to identify laws and regulations that should be rescinded and SORs is a prime candidate with Judges in two recent cases conflating political ideologies (totalitarian and democratic) and allowing sexual rights to “shout louder ” than religious/spiritual rights.
Given what we know about judicial activism I would have to question if we, as the Judges suggest, have a “free constitution ”, the legislature makes all the judicial decisions and if we are living in a “modern liberal democracy ”. Thanks to 20 years of New Labour/Fabian gradualism most political analysts would describe it as a “soft totalitarian police-state ” with an “Imperial Judiciary ”. This view has some resonance with comments about our political landscape made by Stella Rimmington and Sir Richard Dearlove (and to a lesser extent by Eliza Manningham-Buller).
I do not think most Christians are asking for special protection under the law , even though it has been extended to sexual rights and even if a specially convened bench of sympathetic judges was selected when considering the admission policy of a Jewish faith school . Both Christians and Muslims are asking for “fairness and not favours” based on equal protection and tolerance under the law (with other ideologies) or to quote Prof of Law, Joseph Weiler
“tolerance to one view should not lead to intolerance against others”
Currently judges are privileging sexual rights over religious rights and sexual rights and secular rights are being able to “shout louder than the precepts of another ” (i.e Christian rights).
It was anticipated by many that SORs would be problematic and require a full discussion. On or around 15th March 2007 Rt Hon Dominic Grieve MP wrote to Parliament suggesting that SORs was legally so complex it warranted a full debate in Parliament as a Bill, which to my knowledge never happened. It was not even properly discussed at the committee stage if the twelfth delegated legislation committee (15th March 2007) was anything to go by. If you are unfamiliar with this attempt to suppress parliamentary democracy talk to Dominic Grieve, John Redwood or Ian Duncan Smith. This badly drafted undemocratically processed piece of legislation is being used by Judges to curb the rights of Christians so they can no longer manifest their faith in the workplace.
An independent judicial scrutiny commission (IJSC) should be established to:-
• provide democratic legitimacy, political scrutiny and accountability over the exercise of judicial function (as suggested by Lord Neuberger),
• review the guidelines for judicial recusal
• revise the oath Judges swear.
• provide guidelines for the selection of supreme court judges
• provides guidelines for judges reviewing legislation under the human rights act
• provide guidelines for the selection and training of judges (recruited from senior members of the Bar)
• provide guidelines for the role of the courts under the EU constitution
• monitor judicial activism
• rescind badly drafted or undemocratically processed legislation