AT THE HEIGHT OF THEIR POWERS

I thought the debate on longevity had been settled some time ago, but apparently not.  I refer to the compulsory retirement of judges at the age of 70, when the rest of us, if so inclined, are sound enough in wind and limb to work on into our eighties.  Pension benefits are now being geared to a longer working life, and employers are keeping on valuable and experienced staff for as long as they want to stay. It makes sense to everybody except Liz Truss.

The compulsory retirement of judges has been raised, yet again, and this time by Lord Neuberger, the outgoing President of the Supreme Court, who is 69 and as far as I can tell, as fit as a butcher’s dog.  His mental acuity may not be a shoo-in, given his stance on Brexit, but that’s another story.

For those of you who can remember 1975, Lord Reid, that lion of the judiciary and a legend in his own lifetime, finally slipped off his wig and died.  He was in harness almost to the last, and when he died, he was 85.  Nobody suggested he was too old for the job, as he clearly wasn’t.  Imagine if Lord Reid had been forced to retire at the age of 70, we would have been deprived of his intellect and ground breaking judgments for another 15 years.

That other lion of the judiciary was Lord Denning, arguably the outstanding judge of the second half of the twentieth century.  When he hung up his wig, he was 83.

The Judicial Appointments Commission has reported that there are currently 25 high court, 140 circuit judge and 80 district judge vacancies that need to be filled, so forcing the present incumbents into early retirement is pure lunacy.

However, good news from Ms. Truss, as ever with her finger on the button: “The measure (to increase the retirement age) is not part of the Prison and Courts Bill.  I have had discussions on this with the senior judiciary.  We should certainly consider it in due course, but at the moment there is no consensus.”

I don’t want to be unkind to the floundering woman, but she is clearly out of her depth and needs to be put out of her misery.  The same applies to the rest of us. The excitement is almost too much to bear.

DUAL STANDARDS

This unseemly spat between the higher judiciary and the justice secretary rumbles on, with neither side prepared to call it a day.  I refer to the latest ‘salvo’, launched by Lord Thomas of somewhere Welsh and unpronounceable, wherein he harps back to the lack of her support for the Independence of the Judiciary, give it a rest Boyo, and he has added his criticism of her department’s recent initiative over ‘alleged’ rape victims and the limits on cross examination when they give evidence.

For those of you who don’t avidly follow these events, and why would you, Lord Thomas is the outgoing Lord Chief Justice of England and Wales, although England is conspicuous by its absence, look you.  Elizabeth Truss is the object of his barbs, fortified in the knowledge that as he is on his way out, he can say what he pleases.  Not very judicial, but he isn’t the first to cross the line.

Liz Truss is an easy target.  The poor lamb knows absolutely nothing about the law, she follows in the footsteps of Oiky Gove and his predecessor whose name completely escapes me, and in the great scheme of things, if this were not an overtly political appointment, she wouldn’t have been considered.  But in these days of gender diversity and equality of opportunity, anything goes.  By all accounts, she is surrounded by intellectual minnows who are on the back foot when coming forward, so no help there.

Lord Look You is perfectly within his rights to criticise Truss’s recommendations that ‘alleged’ rape victims should be cross examined in advance by the defence advocate submitting a list of prepared questions.  After all, it will be for the judges, high and low, to interpret and implement the legislation, so they have more than a passing interest.  I haven’t been through the mechanics, but I assume the prepared questions will be submitted in advance, and vetted, by the trial judge, to ensure that the ‘alleged’ victim will be spared any searching questions that she might find upsetting.  So the good old standbys such as ‘I suggest your evidence is a tissue of lies’, obviously upsetting, or ‘you’re an attention seeking madam who wouldn’t know the truth if it bit you on the backside’, will almost certainly be ruled offside.

Ms. Truss tells all who care to listen that in this way, when confronted by the evidence, many accused who would otherwise have chosen to brazen it out, would be reduced to gibbering wrecks and plead guilty.  I think not.

But where I take issue with Lord Thomas, and where, in my book at least, this is a classic case of dual standards, is his carping on about Ms. Truss’s reluctance to jump to the defence of the judiciary during the Brexit debate, and the adverse comments in the press aimed at the High Court as well as the Supreme Court for ignoring the will of the people.  But what about the independence of the Body Politic?  The Judiciary and the Body Politic are supposed to be two separate Pillars of State, they are supposed to be distinct although mutually complementary, and there is an unwritten rule that the one doesn’t criticise the other.  Much the same can be said of Justin Welby, but that’s another story.

It’s all the do with sauce and geese and ganders, and Lord Thomas demeans his high office by shouting the odds like a fishwife.  What is more, he is in a privileged position, as he is appointed for life and doesn’t have to submit himself for re-election.  Now there’s a thought!

GRUMPY OLD MAN

You may remember Michael Heseltine, but then again, why would you?  For those with a long memory, he was somebody in the Conservative Party during the reign of the Blessed St. Margaret, who is best remembered by the epithet that when he was good, he was very, very good, and when he was bad, he was awful.  He earned the nickname ‘Tarzan’ because, during one particular heated debate, he seized the Speaker’s mace and swung it round his head.

Towards the end of St. Margaret’s reign, Heseltine began to kick against the prick, almost to the point of being disloyal to the Party.  Emboldened by some of the ‘wets’,  he was persuaded to have  a tilt at the big time, à la Oiky, and St. Margaret was forced out.  Needless to say, Heseltine put his name forward as leader and Prime Minister with the corpse still warm in the grave, but with St. Margaret gone, the thought of Heseltine as the Head Honcho was more than many in the Party could bear.  Imagine his dismay and humiliation when he came second to John Major, promoted well above his rank of corporal, and we, the long suffering public, were forced to endure six years before he was put out of our misery by Tony Blair.

Since then, Heseltine has become a self-appointed Tory Grandee, a title reserved for the old farts who are always good for a quote when the sub-editor has a small column to fill and can’t find anybody else to fill it.  And so it came to pass that Heseltine, now firmly ensconced as the Party’s Grumpy Old Man, has become a fervent anti-Brexiteer, so much so that he refuses to accept the will of the people in the referendum.

That alone may not be sufficient to cast the man into the category of grumpy old man, but his grumpiness knows no bounds when he bemoans the fact that whilst Germany lost the war, ‘we’ have given them the opportunity to win the peace. Make of that what you will, but to me, it seems like complete drivel.

Germany has become the power house of Europe by dint of hard work, good organisational skills, a dedicated and hard-working workforce which doesn’t go on strike at the drop of a cloth cap, and which builds goods we want to buy when all ‘we’ had to offer was British Leyland and Harold Wilson.

Heseltine has been in politics for long enough to know that politics is all about listening to the people and not working for narrow self-interest. One of the main reasons why politicians like Heseltine are held in such low esteem is their failure to respond to the will of the people.  Theresa May was right to sack him for failing to support Article 50, so he should now be put back in his box and the lid slammed tightly shut.

INDEPENDENCE OF THE JUDICIARY

I have no reason to believe that Lord Neuberger is anything other than a thoroughly professional and well respected Supreme Court judge.  His many attractors describe him as a man with a keen intellect and a willingness to listen to reasoned argument  even if he doesn’t follow it.

That said, it could be with a eye to his imminent retirement that he chose to enter the political domain and speak out against two of the four estates of our democracy, namely the Government and the Press.  He referred in particular to the Supreme Court’s ruling against the government in the Brexit appeal, and the Media criticism that followed it. I listened to some of the debate, dominated as it was by Lord Sumption’s colourful ties, but I was appalled to hear Lord ‘Don’t’ Pannick describe the Referendum as an irrelevance.  A crass comment and insulting to the many millions who voted and who thought they were making a difference.  At the end of the day, the Court failed to understand that the Referendum was all about the will of the people and not about Parliament.

Methinks this is a man who doth protest too much.  The Media are perfectly at liberty to criticise judges at all levels if they think they’ve got it wrong, and long may they do so.  This does not equate to an attack on the independence of the judiciary, but if Lord Neuberger feels that his detractors should remain silent,  he is overly sensitive.  He was also overly sensitive in criticising Lynn or Liz Truss, the Lady Chancellor, who knows absolutely nothing about the job, for failing to slap down these detractors.  It may be that the tabloid which branded the three High Court Judges as “enemies of the people” went too far, but if you want to be a judge, you have got to learn to roll with the punches.    To suggest therefore that media criticism of the High Court judges after they ruled last year that parliament not the government should trigger the process of leaving the EU “was undermining the rule of law” was wide of the mark and probably better not said.

He also went on to say: “They [politicians] could have been quicker and clearer. But we all learn by experience, whether politicians or judges. It’s easy to be critical after the event.”

Lord Neuberger continued: “If, without good reason, the media or anyone else undermines the judiciary, that risks undermining our society. The press and the media generally have a positive duty to keep an eye on things. But I think with that power comes the degree of responsibility.”  Amen to that.  Judges wield considerable power, and when they get it wrong, as they do from time to time, who is going to correct them?  It’s a self-perpetuating oligarchy, as judges for the most part don’t like admitting their mistakes.

Finally, to try and bring this unseemly debate to a close, his lordship made one telling and unintended remark, and I paraphrase: “With power comes responsibility.”  That responsibility is not confined to the Media or the Press, or Politicians, but extends to the judiciary.

It is not undermining the independence of the judiciary to hold it to account, and if, after mature reflection, it is plain for all to see they’ve got it wrong, it is a sign of strength, not weakness, to put it right.

MEAL TICKET FOR LIFE

When the Matrimonial Causes Act 1973 hit the statute books, it was devised to take the sting out of acrimonious divorces and concentrate instead on a fair division of the matrimonial assets. The tabloid press were far from amused, as many a copy was sold on the back of kiss and tell revelations of the great and the naughty, no more so than the Duke and Duchess of Argyll, hotly followed by John Profumo, Christine Keeler and Mandy Rice-Davies, with the emphasis on ‘hotly’.  What a joy!

But I digress.  With the passing of the Act, no fault divorces became the norm, although divorcing couples still had to jump through certain legal hoops to show that the marriage had broken down irretrievably, but that was more show than go.

Over the years, there have been two main issues emerging which have caused the courts to pause and reflect: what should be classified as matrimonial assets;  and when should the marriage be deemed to have ended so that a line can be drawn in the sand?

There are two recent cases that give rise to concern.  The first is the case of the wife who bought a property with her mother’s inheritance.  Her husband, who by all accounts appears a complete waste of space, argued successfully in the Court of Appeal that the property should be sold and the proceeds divided equally.  That did not amuse the wife, and she told the judges in no uncertain terms where they could stick their judgment.  Such was the vehemence of her tirade that the judges were forced to take refuge in their retiring room, leaving Old Albert of Securicor to escort her from the premises.  In fairness to the wife, the husband could demonstrate no good reason for any share of the property, let alone an equal share, save only that he had lived in it before they separated.  In every other respect, it belonged to the wife.  I agree.

The second case concerned the couple who divorced 15 years ago. As part of the divorce settlement, the husband gave the wife a lump sum of £230,000 together with a monthly maintenance payment of £1100.  Not bad if you can get it!  But the wife frittered away the lump sum on various foolish enterprises, and to make up for her incompetence, she went back to court and was rewarded with an increased monthly maintenance of £1440 for life!  That is not a misprint.  How on earth can that be described as fair and equable?  It can’t, but judges who appear to be totally out of touch with reality are persistently trotting out these unfair judgments which make them look foolish and discredit the law they are sworn to uphold.

Baroness Deech, you remember her of course, a cross-bench peer, is promoting a bill which would limit maintenance to five years except in cases of exceptional hardship.  This five year limit is apparently the law in Scotland, where prizing open the sporran in any circumstances is taken very seriously indeed and is being considered for an Olympic sport.

David Osborne is the author of three humorous books on the Law.  His latest book, entitled Order in Court, is now available on Amazon and all reputable bookstores.

order-in-court1