Christopher Forsyth: Questioning the Legal Establishment

“greater assertiveness overall is consistent with the less deferential approach towards authority taken by today’s judges, who grew to maturity in the intellectual climate of the Sixties and Seventies and who therefore feel less hidebound by tradition than their predeces sors.”

“the judiciary may have to prepare itself for many more jeers from the stalls in the future.”

Michael Gove MP, 17 Feb 2017, ‘Judges need to show some self-restraint’, The Times

Gove’s “reasoning is fallacious and, in a democracy, dangerous, as it delegitimises the authority of our senior judges and the constitutional role that they play.”

Richard Gordon QC, 18 Feb 2017

Our senior judiciary need no lessons from politicians about the need to respect the constitutional separation of powers between the political branches of government and the judiciary. I know of no case in which they have failed to do so, and Mr Gove cites none.

Lord Lester of Herne Hill QC, 18 Feb 2017

Sir, As a retired judge I am driven to the conclusion that when Michael Gove criticises what he calls judicial assertiveness what he really means is that judges should not disagree with the government. It is clear that the present lord chancellor does not really value the rule of law and the same now appears true for her predecessor.

Dr Stephen Pacey, 18 Feb 2017

Response by Christopher Forsyth in today’s The Times:

Sir, The response of some figures in the legal establishment (letters, Feb 18) to Michael Gove’s moderate and thoughtful criticism of the growth in judicial power (Comment, Feb 17) is astonishing — his criticism is “dangerous” and undermines “the rule of law”.

That great judge Lord Atkin was wiser when he said (in Ambard v Attorney-General for Trinidad and Tobago [1936] AC 322) that “justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful … comments of ordinary men”.

Reasonable and moderate criticism of judicial decisions serves the public interest in that it leads to better decisions and builds public confidence in the judicial process. Suffice to say that Michael Gove raises a serious issue worthy of serious consideration.

Christopher Forsyth

Emeritus Sir David Williams Professor of Public Law, University of Cambridge

22 Feb 2017