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My Lords, in 1978 I was the guest of a senior lawyer in Philadelphia, Pennsylvania. That evening at home, he answered a phone call and came back wreathed in smiles: “The Republicans are struggling to get their legislation through the State Senate”, he told me. “The Democrats have told them they have to pay a price, and I’m the price: they’re making me a judge.”
On Monday of this week, a senior lecturer in the Cardiff Law School, Mr Bharat Malkani, was randomly selected by the research organisation Kantar to take part, as a member of the public, in a survey concerned with the independence of the judiciary. There were two questions. The first was, did he think the judiciary sufficiently independent from government? The second was, why is the judiciary independent? Was it lack of political interference, costs, or lack of interference from the media? When Mr Malkani asked on whose behalf the survey was being conducted, he was told that he could not be given that information until he had answered the questions. When he had finished answering, he was told it was on behalf of the Government. He phoned Kantar back later to check and was then informed that it was simply an in-house survey and had no connection to the Government at all. What is this all about? What is going on?
In recent months, as the noble and learned Lord, Lord Judge, observed, we have seen tensions. The Executive, without majority support in Parliament, unlawfully attempted to frustrate Parliament’s deliberations by way of Prorogation, relying upon prerogative powers of the Crown not deployed since the days of Charles I. Parliament reacted with unprecedented procedures, which were open to it only because the Government did not have the votes. Boundaries which were thought to be understood were crossed and the Supreme Court had to sort out the mess. Who else could have done it? The judges were portrayed by the Government, however, as unelected, unaccountable and anti-democratic: an echo perhaps, of the Mail’s “Enemies of the People” tag. The Government obviously find it difficult to get over losing a case. Anti-democratic? As Lord Bingham pointed out in a leading case:
“The function of independent judges charged to interpret and apply the law is universally recognised as a cardinal feature of the modern democratic state, a cornerstone of the rule of law itself.”
In Emlyn Hooson’s Chester chambers, in the elections of the 1960s, 1970s and 1980s, five of us stood as Liberal candidates—