“Trust the Judges” is said when governments enact a law which has the effect of limiting, often potentially unreasonably, the freedom and liberty of the individual; we can, the theory goes, trust the fierce independence of the judiciary to protect freedom and liberty which we, the governed, cherish. “Trust the judges” is trotted out when governments enact laws which limit our freedom. Unfortunately it seems to me that the judges can no longer be trusted.
Law is built upon the principle that everyone makes mistakes, even the judges. If a judge makes a mistake the wise judges of the Court of Appeal will. upon appeal, remedy that error. Even the wise judges of the Court of Appeal make mistakes; for those cases the wiser judges of the Supreme Court are there to set those errors right. Those Judges may also make mistakes and the only remedy then is to attempt to set the error right by claiming that the human rights of the individual have been breached and yet another judicial test will occur. But all these processes miss a fundamental flaw. If the law that the judge is applying is in itself a bad law there is no remedy. A bad law will not necessarily be in breach of your human rights; it may simply be bad, unjust and plain wrong. Not all of the liberties that people must have are written in human rights laws.
Traditionally the common law of England almost instinctively understood that injustice is common and so attempted to limit injustice by using the principle that everything is permitted unless there was a law prohibiting it. The continental civil law system tends to operate in the opposite way; nothing is permitted unless there is a law permitting it. Today in Britain there are so many laws. Today we must operate on the principle that a course of action must be carefully measured against many millions of words of law. Instincts about justice, freedom and liberty, which at one time formed an important tool in understanding the law for ordinary people. are now almost valueless.
By a series of regulations and new laws much discretion that a judge had has been whittled away, and so judges are naturally isolated from doing the right thing and have developed a habit of applying the law, right or wrong, good or bad. Many government agencies have “go to” judges, who have acquired a great knowledge of the field of law of those agencies. Thus they have become, in effect, merely another part of those agencies. Any habit they might have had of testing the requirements of the agency concerned (such as independently considering whether a warrant should be issued) has long since vanished.
Laws are written in such as way that Judges frequently find that they have no choice but to apply the law, even though it may cause hardship or worse give sanction to a course of action which is wrong. Judges have become too close to governments. They have lost their fierce independence, having it smothered by a series of controls and regulations. They have developed a bad habit of forgetting that their overriding purpose is to do justice, not administer regulation. They have had their independence restricted and lessened in so many ways that when a government, when enacting a new and potentially bad law, tells us that there will be judicial control of that law, we should take no comfort because we can no longer trust the judges.