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- The Observer,
- Sunday November 4, 2001
So powerful is the mythology surrounding the Home Secretary that it seems almost credible, given a war with Blunkett at the helm, that a post-Taliban regime would even now be debating police performance indicators.
Instead, Blunkett is involved in a local skirmish. A 'furious turf war' is reported between him and the Lord Chancellor, who is allegedly angry that he refused to cut incendiary parts of a speech lambasting judges. I don't imagine this stand-off much troubles Blunkett.
Lord Irvine will have to console himself that his rival's unexpurgated thoughts were delivered in wartime, so muting attention to his strongest denunciation of a judiciary he deems too powerful. In demanding 'justice and not just the primacy of jurisprudence', Blunkett staked out the battleground for control of the criminal justice system.
Lord Woolf, the Lord Chief Justice, is thought to have regarded the assault as 'rather silly' and deemed it wiser not to intervene. Woolf has had a good week, too. On Thursday, he delivered his judgment on Learco Chindamo, who was 15 when he stabbed to death the west London headmaster, Philip Lawrence.
Chindamo's appeal, against a minimum 12-year term for murder, followed the European Court rulings removing Home Secretaries' power to fix tariffs for juvenile killers and paving the way for the release of James Bulger's killers.
Since he signalled freedom for Robert Thompson and Jon Venables, Woolf's reviews of other juvenile cases (15 down and 125 to go) have magnetised right-wingers yearning for evidence of a cardi-clad old liberal freeing the crazy or dangerous. It hasn't happened. The decision that Chindamo's sentence must stand looks right.
There is, however, little doubt that if his rehabilitation had demanded early release, the prospect of press odium, public fury and a widow's grief would not have swayed the Lord Chief Justice from delivering that liberty. That is why judges, not politicians, should set tariffs.
For now, it remains a ludicrous anomaly that the Home Secretary still reserves the final say on 27 'untouchable' adult murderers, including Myra Hindley, who is probably no more a threat to public safety than Harry Potter. Woolf has said that right should soon be ceded.
Blunkett would rather spend a decade slopping out at Parkhurst. But flashpoints between judiciary and executive are nothing new, the Human Rights Act renders judges more powerful, and Blunkett's overtures are chiefly perceived as sabre-rattling. That is the first of the judiciary's three big mistakes.
Error number two is the condescension accorded to Blunkett by some in the legal world. Unlike his two (equally hostile) predecessors, he is not a lawyer. Nor is anyone else in a ministerial team whose benchmark of legal finesse is Lord Rooker's definition of treason as being like 'an elephant on the doorstep. You recognise it when you see it'. Blunkett, some critics imply, is an unsophisticated meddler. The third mistake is to deem the current spat a replay between Michael Howard and the then Lord Chief Justice, Peter Taylor.
Howard was the judiciary's Max Clifford. His intemperance made Taylor look magnificent and transformed judges from taxidermised claret-quaffers to darlings of the Left. Blunkett plans to bestow no such PR alchemy. But what can he do, particularly now the Labour-ordained Human Rights Act gives judges unprecedented power to hold government and public bodies to account? Plenty.
Sir Robin Auld's criminal justice review and John Halliday's report on sentencing will feed huge changes in the justice system. Consultation on Halliday ended last week, and Blunkett will hope for public endorsement in restricting courts' discretion. First, there will be anti-terrorist Bills containing the good (greater airport security, faster extradition) and the disturbing.
Holding terrorist suspects indefinitely will mean temporarily suspending the European Convention on Human Rights. Asylum- applicants suspected of terrorism will lose the right, previously sacrosanct, to judicial review. Judges have a lot to worry about, not least because Blunkett holds a weapon neither Howard nor Straw possessed - he has an outsider's irreverence for the judicial system.
I suspect his background, as a blind child told to train as a lathe operator, instilled a visceral dislike of a hierarchy graded in the sieve of privilege. Beyond that, he is used to getting what he wants. It seems doubtful if judges realise what has hit them. They need to do so fast.
Blunkett has been the success story of this Cabinet, particularly over asylum reform, but on the judiciary, he is wrong. Judges need more discretion, not less. The mandatory life sentence for murder, under which victims of domestic violence are indistinguishable from serial butchers, is absurd. As Woolf has said, sentences imposed by Parliament can lead to injustice. You do not catch judges dreaming up populist wheezes to march burglars to cashpoints.
A small and passive role for judges works only when people believe governments can be trusted always to work fairly and efficiently on citizens' behalf. Sleaze and self-interest inspire no such confidence. Nor does the fate of scrutineers like the parliamentary standards commissioner, Elizabeth Filkin, or the departed chief inspector of prisons, Sir David Ramsbotham. When rigorous watchdogs have such butterfly lifespans, it is obvious that a more toothless or compliant judiciary would lead to worse government.
That does not mean that the judiciary is without sin. Individuals (such as Lord Hoffman in the Pinochet extradition) are fallible, and the judiciary is crusted in tradition at a time that the Human Rights Act demands modernity and equality.
When there are no women judges in the House of Lords, and no ethnic minority judges at High Court level or above, the case for a judicial appointments commission is unanswerable. Except by gradualist judges, by the Lord Chancellor, who has settled for a lay watchdog (and by the Government, which dropped the idea from its election manifesto).
Lord Bingham's idea that we should have an American-style supreme court, rather than a bolt-on to the House of Lords, has attracted little interest. Although the selection of Queen's Counsels disturbs the Office of Fair Trading, the Lord Chancellor is sanguine. Nor does the awkward overlap between his roles as Cabinet Minister, Speaker and judge bother him.
Not that Irvine is wholly inert. He fought, correctly, to stop the courts being run by Blunkett's Home Office. He also decided last week that circuit judges must forfeit the right to be driven to court in expensive limousines and make do with modest people carriers instead. While a saving of £200,000 to the taxpayer is a welcome signal of austerity from Lord Pugin, it fails to presage the revolution needed now.
David Blunkett's toughness suggests that he will, if necessary, be prepared to embark on a dispute of Jarndyce proportion over who controls the criminal justice system. The judiciary should modify its arcane ways, cling to all its powers, enrage the executive and forget emollience. If it fails on any of those counts, it has more to lose than its Daimlers. And so do we.
