Melanie Phillips

31 May 2006

Too big for their wigs

Published in: Daily Mail

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Are our senior judges simply living on a different planet from the rest of us lesser mortals? Our most senior judge, the Lord Chief Justice, Lord Phillips, has launched yet another judicial broadside against the apparent evils of imprisonment.

In Lord Phillips's universe, it appears that prison is not the place for criminals. Instead, wherever possible judges should pass community sentences - which he admits will not be tolerated by the public unless they include 'significant punishment' -- because 'the sensible place for rehabilitation is the community'.

Excuse me? Community sentences spectacularly fail to rehabilitate criminals. They result in an even higher rate of recidivism than jail sentences.

This is hardly surprising, since community sentences seem to be hardship-free zones. According to a recent report by the Chief Inspector of Probation, burglars and robbers in London are being set to restore antique furniture or make costumes for the Notting Hill carnival. And thousands of criminals sentenced to unpaid community work do nothing at all on some days.

When they turn up, there are no probation staff to supervise them so they are simply sent home. And those who don't even bother to turn up are not taken back to court and re-sentenced. It may amaze Lord Phillips to learn that 'significant punishment' means going to prison. Yes, overcrowding means prisons don't function properly. But the remedy for that is to build more prisons.

Yet our senior judges harbour an obsessive animosity towards prison, doubtless because of the way human rights doctrine has so muddled the way we look at the very concepts of crime and punishment.

Lord Phillips's remarks, however, were more bizarre still. One reason prison numbers were rising, he said, was that drug users were deliberately committing crimes to get onto prison drug programmes. He had come across prisoners offered community sentences who preferred to go to prison so they could get treatment.

What on earth does the Lord Chief Justice have under his wig? There is no proper evidence for this at all. Indeed, an investigation by MPs said last year that fewer than half of all jails had drug treatment courses at all, that only one in ten prisoners who use drugs got places on drug treatment programmes, and that half of those who did go on courses never finished them.

As for supposedly non-existent community drug treatment programmes, they do exist -- but are pretty useless in turning offenders away from crime. In a recent report, the Commons Public Accounts Committee observed that drug treatment orders were 'more like a get out of jail free card' than a rehabilitation programme. Only 25% of those who accepted them ever completed them.

It is deeply worrying not only that a senior judge should make such odd and ill-informed remarks but that the judiciary should assume it knows better than politicians what policies should be pursued.

Yesterday the former Lord Chief Justice, Lord Woolf, expanded upon such arrogance. Apparently making a coded attack on the Prime Minister for his criticisms of a judge over an immigration ruling, Lord Woolf condemned politicians for 'knocking' individual judges because it was 'very damaging'.

So let's get this right. Judges may make comments which are not only wildly inappropriate because they are intensely political, but also reveal themselves to be woefully out of touch. Yet then they loftily inform us that we should not criticise them for doing so, because they apparently reside on some celestial plane above public debate.

Of course, in principle politicians and judges should have a Chinese wall between them. And it was once clearly understood that politicians and judges stood on either side of that wall. But the problem is that the judges themselves have torn up that understanding, and are now getting involved in matters of policy such as the role of imprisonment or drug treatment which are properly the territory of politicians. The judges have simply grown too big for their wigs.

One of the main reasons is human rights law. Lord Woolf robustly defended this yesterday, and said that any resulting tension between government and judiciary was healthy in a democracy. But the fact is that human rights law has given the judges a weapon to undermine democracy, by setting up themselves rather than politicians as the people who should decide how the country should be ruled.

This first surfaced back in the 1980s, when senior judges decided that the long years of Tory government and the weakness of the opposition posed such a threat to democracy that the judiciary should take upon itself the mantle of opposition instead.

In the days before the passage of the Human Rights Act, this took the form of challenges to immigration law through judicial review. Such attempts to change the direction of government policy through court rulings became known as judicial activism.

When Tony Blair came to power, instead of putting the judges back behind the Chinese wall he attached a turbo-charge to their already burgeoning judicial activism by introducing the Human Rights Act.

This change in the way judges were behaving was by no means restricted to Britain. Judicial activism has become a phenomenon throughout the western world. In America, Australia, the countries of the EU and elsewhere the judges -- acting as a kind of judicial fifth column around the world - are arrogating to themselves powers which belong to the world of politics.

Earlier this year, in a little-noticed address in London to the Law Commission, a prominent Australian judge, Michael Kirby - a key proponent of judicial activism - spelt out the judges' agenda with unabashed frankness.

The institutions of government in both Britain and Australia, he said, had become unbalanced. Governments had become too powerful, civil servants and MPs had lost influence to political advisers and ministerial accountability was a thing of the past.

Amen to that. But he went on to say that as a result 'the very notion of the

About Melanie

Melanie Phillips is a British journalist and author. She is best known for her controversial column about political and social issues which currently appears in the Daily Mail. Awarded the Orwell Prize for journalism in 1996, she is the author of All Must Have Prizes, an acclaimed study of Britain's educational and moral crisis, which provoked the fury of educationists and the delight and relief of parents.

Read full biography


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Melanie Phillips
Daily Mail
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