The dividing wall between law and politics is under attack

All my legal life I have watched with sadness those who are ever groping, Gollum-like, unable to resist the idea that our courts can somehow give them the political victory which the elections deny them. During the fallout from the Brexit vote, I hoped this insanity had reached its peak. I was wrong.

We are only four months into the year and already members of the House of Lords have advocated that our courts have a say in determining our foreign policy, while the House of Commons Privileges Committee has suggested our courts should enforce the appearance of witnesses before parliament — and that they should effectively be a court (which they aren’t capable of being).

I’ve already had to intervene in whatever the ‘Good’ Law Project thinks it is doing in the courts over PPE here. Now the suggestion is being seriously made that the Prime Minister should be taken to court via private prosecution over tragic Covid deaths and prosecuted for over 150,000 cases of murder. The suggestion was made by a prominent trade unionist here and widely met with derision, so need not occupy us long — it is unequivocally absurd.

The idea that a body that is not the state (the police and CPS in our system) can nonetheless bring a prosecution is an old one. It’s a gap left in the fence, just in case a situation arose in which the police and CPS were jointly corrupt. It is not an invitation for political actors to stage show trials.

What matters now is quite how wholesale this onslaught is. We are facing an unprecedented attempt to drag the courts into fights that they do not belong in. Three points are immediately clear: 1. Yes, this is copying America, 2. No, it hasn’t helped the reputation of the US legal system (or indeed won any vote), 3. We need our legal system as it is.

We do not crow enough about it, but our legal system is one of the best in the world (and ‘one of’ is pure false modesty) — and as a result, our legal industry is a huge and successful employer.

In my spare time, I campaign for social mobility; the process of getting kids jobs. So it follows that I need there to be jobs for these young people to go to. The success of our legal industry is built upon our reputation for political neutrality. As such, the more political our courts are perceived to be, the less work there will be and the fewer jobs there will be. It is that simple.

Others will have different and legitimate concerns. Our courts are busy doing things that matter. I want you to think of every hour of a court’s time as precious — a national resource. Why on earth would we waste that time?

Some may argue that none of this works anyway. In our modern world, we have trial by media within five seconds of an allegation being made. Why would you need a lengthy court process? The correction never achieves as many social media likes as the false outrage.

I’ve yet to see proof that any of this works, but that is clearly too political for me. All I can say is that we used to have a good stout wall that divided law and politics. Some seem to think it is a jolly wheeze to bring politics into law. The reality is that everyone will suffer: the amateur politicians will lose, the judges will unfairly suffer criticism and suspicion, good cases of true justice will be delayed, our industry will suffer and those jobs I need won’t exist.