Judges’ vital but limited role

August 18, 2017 09:48

In the fanfare that accompanied the long overdue appointment of the UK Supreme Court’s first female president last month, a striking fact went unremarked. Baroness Hale is the Supreme Court’s first non-Jewish president. Not just here but in courts across the world,

Jews can be proud of a fine judicial tradition. Names such as Louis Brandeis, Ruth Bader-Ginsburg, Aharon Barak, Arthur Chaskalson and Albie Sachs speak to the important role of Jewish judges.

This may not be surprising. Law and legal interpretation are central in Jewish thought and judges play a key role in our history. The Talmud calls the Book of Judges “the Book of the Straight”.

When the Jews had no king, the people turned to judges as their leaders. In times of trouble “…the Lord raised up judges and they saved the Israelites from the hands of those who had spoiled them” (Judges 2:16). The Judges were warriors or prophets but they derived their real power from their knowledge of and ability to adjudicate on the law.

While ideals of political leadership may have changed, the tradition of judges as leaders has renewed resonance today. In a period of political tumult, we find ourselves turning to judges for leadership.

In the wake of the Grenfell Tower tragedy the immediate response was to call for a judge-led inquiry. We turned to judges after the phone hacking scandal, the Iraq war and to examine historic sex-abuse. But why?

One reason is that judges have the forensic skills to marshal evidence and uncover the truth. There is, however, another more worrying reason. We may be turning to judges because we’ve lost faith in other institutions.

In an Ipsos Mori survey conducted in 2016, judges emerged as among the most trusted in society with 80 per cent of respondents saying they were honest. Politicians and journalists (along with estate agents) were bottom of the league. Only 15 per cent trusted them. Perhaps because of a collective loss of faith in journalism, finance and in democracy itself, it is to judges we increasingly turn for honesty and integrity.

But there are limits to the leadership judges can provide. They don’t decide what to investigate; politicians set their task. Judges don’t make the law; politicians do.

A judge’s role is to interpret the law and apply it to the facts. It is precisely because judges are non-partisan and can present themselves as being above the political fray that they have influence.

However, when I advised clients who represent residents and community groups based in and around Grenfell Tower on the scope of the recently announced public inquiry, it was clear that what people need from that process and what judges can deliver are two different things.

At a basic level, people want answers about the immediate causes of the fire and who is at fault. A judge familiar with handling technical evidence can supply such answers.

But my clients and other residents need something more.

They want someone who will answer questions about how their grievances about housing conditions and fire safety went ignored by officials, answers about unequal power and wealth and how such a fire occurred in one of the richest boroughs in one of the world’s richest cities. They want someone who will represent their voice. Yet what does it say about society that we are looking to judges to play that role?

Some have criticised Sir Malcolm Moore-Bick’s appointment to chair the Grenfell inquiry for lacking the life experience to empathise with tenants. That criticism is misplaced. His skills and the source of our trust in him is not his representativeness or his politics but his legal knowledge and the belief he will apply it without fear or favour.

People are right to want change in the laws that regulate housing and a political culture which ignores the disadvantaged. But that is for political leaders and for us as citizens to transform.

For progressives, judges have become the repository of our hopes of holding the government to account, whether on Brexit, labour conditions or human rights. But as we celebrate our judges we should remember that our faith in them can be evidence that we are giving up on politics. We should not. Now more than ever it is up to us organise and make the case for the society we want to live in.


Sarah Sackman is a public law barrister. She is vice-chair of JLM and stood as Labour’s Parliamentary candidate for Finchley and Golders Green in 2015.


August 18, 2017 09:48

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