Analysis — Robert Jenrick’s ‘dangerous’ rhetoric undermines rule of law and solicitors across the land

Rewind nine years and the UK was outraged when senior judges were branded ‘ENEMIES OF THE PEOPLE’ by a national newspaper. Look how far we’ve fallen.

The rule of law was threatened, people rightly said. The judiciary were made into targets; the entire legal system was upended with the suggestion politics had infiltrated the courtroom.

It’s a sign of just how far the Overton Window has lurched that a politician – the Shadow Secretary of State for Justice and Shadow Lord Chancellor nonetheless – was comfortable standing at his party’s national conference to say judges today are blurring the line ‘between adjudication and activism’.

Some were outraged by Robert Jenrick’s remarks. Legal professionals have certainly let their thoughts be known. But it appears the questioning of the judiciary and the rule of law is now fair game British political discourse.

The Law Society of Scotland has pushed back on Jenrick’s speech, calling out the comments and the increasing prevalence of the undermining of the independence of the judiciary.

Society President Patricia Thom said: "Robert Jenrick's comments about so-called 'activist' judges are dangerous and unacceptable. We strongly condemn such rhetoric, which appears designed to undermine the independence of the judiciary and its fundamental role in safeguarding our constitution.

"Politicians have a responsibility to respect the role of judges in upholding the rule of law and interpreting legislation as passed by Parliament, and to accept that judicial appointments are made at arm's length from political interference.

"It is notable that Mr Jenrick has provided no legal basis for questioning the validity of judicial decisions with which he does not agree. Unlike politicians, members of the judiciary are expected to be strictly impartial when considering how the law should be applied, and also have no right of reply.”

Thom added: "Dangerous rhetoric such as this has sadly been on the increase for several years, and we have numerous examples in other countries of the dire consequences for democracy and the rule of law when judicial independence is stymied."

What did Robert Jenrick actually say?

Standing with a judge’s wig as a blunt prop, Jenrick said he would stop judges who ‘blur the line between adjudication and activism’ by giving ministers a bigger role in filling judicial vacancies.

The allegations were based on his suggestion that judges linked to pro-migrant charities could not be objective. Under a Conservative government, Jenrick said his party would reverse the New Labour-era restrictions on ministerial involvement in appointments.

The Judicial Appointments Commission was established in 2006 to improve the transparency and independence of judicial selections.

Jenrick told delegates that he had found ‘dozens of judges’ who had ‘broadcast their open borders views’ on social media. No one was named, but Jenrick said these judges had dishonoured ‘generations of independent jurists who came before them’.

Former Supreme Court judge Lord Sumption said the Shadow Justice Secretary’s proposals risked an American-style politicisation of the judiciary.

Speaking on BBC Radio 4’s The World at One, he said: "The only possible reason for going back to the old system would be to appoint judges who were less independent or more political than the ones appointed by the Judicial Appointments Commission.”