If the enemy of my enemy is my friend, it follows that the enemy of Michael Howard is my hero. So awful was Howard's long reign at the Home Office that many liberals sought democratic relief from the most blatantly undemocratic section of the establishment: the judiciary. It was the strange sound of Law Lords denouncing Howard's preposterous insistence that 'prison works' and the widespread jubilation at his many snubbings in the courts that led to liberal hosannas for the judges. And the judges in turn were happy to see themselves as Supreme Keepers of the Public Liberties. On the right, Mr Justice Laws called for a 'higher-order law' under which judges could overrule elected governments in the interests of the people's 'fundamental freedoms'. On the left, Mr Justice Sedley wrote: 'Modern public law has carried forward a culture of judicial assertiveness to compensate for, and in places repair, dysfunctions in the democratic process.' In the centre, Lord Woolf: 'I myself would consider there were advantages in making it clear that ultimately there are even limits on the supremacy of Parliament which it is the courts' inalienable responsibility to identify and uphold.' Common to all three was the notion that the judges are the obvious people to intervene wherever 'dysfunctions in the democratic process' emerge.
LRB 18 September 1997 | PDF Download