The writer is an FT contributing editor
The unattractive politics of Donald Trump quickly nominating Amy Coney Barrett to fill the vacant seat on the US Supreme Court has prompted some self-congratulation in the UK. Things are done differently here, is the comforting thought, for the appointment of judges is not politicised.
The truth is, however, that in England and Wales at least (Scotland and Northern Ireland have their own legal systems) there has always been a substantial overlap of law and politics: it is just that the British are rather good at pretending otherwise.
Take the historical appointment of judges. Until the previous century, it was practice that the senior office of the lord chief justice, who presided over the most serious criminal trials, followed political service. Similarly, attorneys-general retiring from parliament were often made High Court judges. There was much fluidity between the political and judicial establishments.
At the apex of the constitution, the ancient office of lord chancellor entitled its holder to sit both in the cabinet and as a judge in the most senior court of the land. Remarkably, this carried on until Tony Blair’s first Labour government of 1997 to 2001. The notion that there has always been some total structural divide between politicians and judges in England betrays a lack of knowledge of the country’s legal history.
Even now, barristers (the lawyers who tend to present cases in court) are encouraged to provide regular legal services to ministers and officials at a substantial discount so as to obtain promotion to the judiciary by joining a prestigious panel. The best of them are given income streams as “Treasury counsel”, charged with helping the government out of awkward or sensitive political-legal situations; in return they are often appointed as a High Court judge. In this way judicial preferment is formally based in part on assisting ministers and officials.
And when appointed, judges are often in effect lawmakers and policymakers, though they cloak it as “developing” existing law. Over the past 20 years, they have introduced an entirely new privacy law, with no explicit statutory basis. The most senior UK Supreme Court judges now also frequently make and publish extrajudicial speeches on general public policy issues, which are often a better guide for understanding the direction of the law than anything said in parliament.
Once retired, English judges use their status freely to contribute to public debate, as with the notable examples of Jonathan Sumption, a former Supreme Court justice, and Brenda Hale, former president of the Supreme Court. Indeed, the wisest current writer on the relationships between law and policy in the UK is the former Court of Appeal judge Stephen Sedley.
Even in their judgments, rather than their statements outside court, one can see the policies and politics of the judiciary. In the 1970s, the legal academic JAG Griffiths provided a detailed compendium of political judgments; 50 years later one can look online at the reasoning in “public law” cases where the practical boundaries of the state are determined, when of course these boundaries are the most political issues of all.
None of the above is necessarily wrong; much of it is a normal fact of political and legal life. Judges with political worldliness are not a bad thing. And it is good that ministers and officials have ready access to high quality legal advice. The most important question is how to manage the overlap, not to contend that it should not exist.
The problem is with the simplistic and misleading notion that law and politics are completely separate public realms. There is and always will be substantial common ground. The same set of facts can easily be both a matter of political controversy and a question for a court. What needs to be struck is the right balance.
An extreme example of imbalance, of course, is when the executive seeks to extinguish the independence of the judiciary — as in Poland. Since coming to power in 2015, the deliberate policy of the Law and Justice party has been to limit or remove the structural separation of powers, including to change how the Supreme Court head is appointed.
But it is equally an error to insist naively on politics and the judiciary as being absolutely distinct. There may be obvious faults with the US system of appointing Supreme Court judges and federal judges generally, but the main difference between that and the English approach to the politics of the judiciary is that the Americans are open about the relationship, and the English are not.