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“When people like the members of the judiciary, broadly homogeneous in character, are faced with . . . political situations, they act in broadly similar ways  . . . . Behind these actions lies a unifying attitude of mind, a political position, which is primarily concerned to protect and conserve certain values and institutions.” JAG Griffith The Politics of the Judiciary, (1991) 4th Edn, p.19.

News reaches us today that a TUC report has shown that judges, barristers and solicitors have seen their salaries more than double since 1978 in real terms.

In the report, Britain’s Livelihood Crisis, the TUC claims that legal professionals are members of a “rich minority taking an ever larger slice of the UK’s dwindling earnings cake”. But does this mean that Griffith’s words (still?) ring true? Does this “rich minority” exert a particular influence, or adopt a consistent political or philosophical position? May and June have seen a number of broad attacks on the ‘politics of the judiciary’.

In the May edition of Prospect magazine, James Grant, claims that the composition of Supreme Court panels affects the outcome of cases. He suggests that ”in a democracy, the role of a Supreme Court can only be justified if there is proper public accountability of the justices. It is important, then, that the public has more information about the views of those who sit on this court . . . .”

His argument  is: “If you spend time talking to the British justices and analysing the history of their judgments, as I have done, the picture that emerges is one of a court split by the tension between liberal and conservative views. The liberal view can be defined as tending to side with the interests of the individual; the conservative, with the interests of government. On balance, the liberal tendency is gradually prevailing.”

His argument would require that the “interests of government” are somehow a distinct and consistent position, one that could be promoted or opposed, and one which judges’ decisions could be defined against. However, governments are large and schizophrenic beasts; ministers, departments, civil servants and MPs all battle for influence within them, and law remains on the statute book even after the Bills’ promoters are long gone. A consistent inclination amongst the judiciary to oppose Government positions would not be a political principle, but instead an institutional contrariness, which there seems little evidence of.

Grant claims that the Human Rights Act 1998 is responsible for what he sees as the ‘liberal’ shift. However, the Act itself was passed by Parliament and represents its intent (insofar as any statute does) in terms of the way judges and public authorities should behave.

(An interesting aside from Grant’s article, is the quote from Jonathan Sumption QC, that “I’m basically a Tory who votes Labour much of the time,” (2000 interview with The Lawyer), which possibly says more about New Labour than Sumption’s party political views).

Grant proposes open selection panels as a way of improving public knowledge of Justices’ views (as to which, cf Alexander Horne’s research paper The Changing Constitution: A Case for Judicial Confirmation Hearings?), but the politics of the judiciary might also be brought more into the open by the televising of court proceedings. However, as an article in The Guardian today shows, that there are other tensions in that too.

The SNP have been causing a bit of a stir, by announcing a review that The Herald describes as “an expert group to examine Scotland’s relationship with the UK Supreme Court as the fall-out continues from the Nat Fraser and Cadder cases“.

Alex Salmond, Scottish First Minister, explains: “It is that desire to ensure Scotland is allowed to make its own decisions that fuels this Government’s desire for reform of the current position of the UK Supreme Court in Scottish criminal cases.”

This view has echoes of the debate around the position of Strasbourg and the ECHR within UK legal systems, where politicians lambast a “foreign” system being imposed – a touch of the Michael Howards perhaps? Others have pointed out that the Scottish Government also hopes to cut the £478,000 share of the court’s running costs that Scotland pays!

Update: Adam Wagner asked Who should appoint our top judges? yesterday, with an analysis of the Supreme Court Justices’ appointment system.

Update II: The Scotsman reports that John Campbell QC has written to express his surprise that the group of four legal experts appointed by the Scottish Government to examine the  relationship between Scots law and the Supreme Court does not include a practising lawyer.