Like America, we should scrutinise our judges

We must avoid Kavanaugh-style culture wars, but our legal system could still benefit from some light

This weekend the millions of conservative Americans who held their noses when they voted for Donald Trump might get their vindication. After the ugliest and most controversial of confirmation hearings, Brett Kavanaugh, nominated by the President to occupy the ninth and swing vote seat on the US Supreme Court, is almost certainly to be endorsed by the Senate.

Even if the fallout from the confirmation battle leads to the Republicans losing their control of the Senate in the forthcoming midterm elections, most conservatives will regard that as a price well worth paying. It wasn’t, after all, the one hundred members of the Senate who legalised abortion four decades ago. It wasn’t the 435 members of the House of Representatives who, three years ago, gave every same-sex couple in America the right to marry. It was America’s highest court.

Al Gore would certainly agree that the US Supreme Court is the great power in American public life. Eighteen years ago it was a five-to-four vote by Justices that stopped the counting of contested ballot papers in Florida and effectively handed the presidency to his opponent George Wbush, consigning Mr Gore to a life of documentary-making. The court’s power has grown as the ability of elected branches of federal government in Washington to pass laws has shrunk. It’s been the court that has had to interpret laws that an often gridlocked Congress and presidency have either failed to update or have drafted badly.

Britain’s courts have not made such landmark and controversial decisions as America’s. This mainly reflects the continuing power of the House of Commons. If a party wins a majority of MPS it usually gets to pass the laws that it wants to. The Lords can delay and amend but it cannot block the will of MPS for long. But the authority of the Commons has, none the less, increasingly been challenged by the courts, and ministers find more and more of their decisions are subject to judicial review.

In recent months we have seen judges curtail the right of the Home Office to deport criminals and terror suspects. They have applied human rights laws to the battlefield, leading to controversial prosecution of military personnel. Courts appear to have decided to give more freedom to those campaigning for a right to die and assisted suicide. They have had power over life and death when parents and physicians have disagreed over whether to continue or cease treatment of sick children. And in the economic field, courts have recently awarded expensive new rights to workers in the so-called gig economy. Rather than waiting for the nation’s elected representatives to award or deny these rights, they have, for all intents and purposes, chosen to become makers, rather than interpreters, of law.

Much judicial activism reflects the ways in which our courts have interpreted European laws. Even after we have left the European Union, however, it’s likely that various continental courts and codes will still apply directly or will reign through case law. It would be wrong, though, to blame international treaties for all judicial law-making.

Many conservative-minded people fear that too much of our legal system is in the hands of liberals such as the former director of public prosecutions, Alison Saunders, and before her, Sir Keir Starmer, now a Labour MP and frontbencher. During Saunders’ time the Crown Prosecution Service became much more focused on sex crimes but trial after trial collapsed because so much of what became an aggressive focus on rape cases was not supported by adequate evidence. Even more controversially, prosecutors and police appear to have held back evidence from defence lawyers as part of a prosecutions-at-almost-any-price strategy. Saunders is part of a legal establishment that has been more inclined to use its powers to pursue hate crimes and historic crimes rather than traditional offences. It’s a strategy that has consumed much police and public resources but has resulted in relatively few convictions – and it could be said to have blighted innocent lives.

For too long the Conservative Party has ignored the ways in which the Left has marched through the institutions of what Americans have called the “deep state” – that part of government, which encompasses the courts but also quangos and the civil service, and which is almost impervious to changes in democratic control. Before David Cameron and Theresa May came to power, almost five times as many people appointed to public bodies were affiliated to Labour than to the Tories. But even after Mr Cameron and Mrs May occupied Downing Street there were still more elevations of Labour people than Conservatives.

While I hope Britain can avoid importing the rancorous and hyperpartisan hearings that America uses to vet public appointments, we need to worry more about who is being installed in our own country’s most influential courts and public bodies. Until we do so, our democratically elected governments may be in office but they are not in power.