Supreme Gaffe
Last year in One law for all revisited and One law for all I explained why Sharia Law could not and should not be introduced into English law. To judge from his most recent utterance, the Lord Chief Justice, Lord Phillips of Worth Matravers, disagrees. Although there is perhaps less difference between us than might at first be supposed, and whilst giving due deference to his exalted position and undoubted legal knowledge, I shall explain why he is wrong. Because of its topicality this means that again The Drug Problem: part 3 is postponed to a future Monday soon.
Lord Phillips was a commercial lawyer. He is undoubtedly a very fine lawyer, although the general view of his tenure of his various offices is that as a judge he is a very good lawyer rather than a great one (admittedly judging greatness in this context in a pretty elevated form). He is thought shortly to become the senior judge in the new Supreme Court. He will then, as well as his meteoric rise through the judiciary, have been Master of the Rolls heading up the Civil Division of the High Court, Lord Chief Justice heading up the Criminal Division, and effective head of the Supreme Court. All of that at a time when the effect of the Human Rights Act is to bring judges far more into the political arena and to mean that pronouncements by Lord Phillips are seen as policy pronouncements.
My biggest concern about the Human Rights Act was that it would involve judges in political decisions albeit that they were both unelected and not necessarily best placed to make policy rather than legal decisions. One might say that in general it would be difficult to see them making worse policy decisions than most politicians seem capable of doing, but the politicians at least can be held to account. Judges cannot, with the consequent risk that respect for the judiciary and the legal system may be eroded if judges seem to be making policy decisions for people who did not put them there and have no means of removing them.
Any straw poll amongst lawyers or judges always risks being grotesquely unrepresentative and possibly completely misleading. I have spoken to various people who, whilst they like and admire Lord Phillips, do not think that he has shown any particular evidence of administrative ability or public relations nous. The same of course could well be true of many great lawyers of the past, but they were living in different times, and someone who is effectively both at the pinnacle of the judiciary and likely to remain so for some substantial time, really needs both abilities if they are not to be caught out.
Lord Phillips, starting from a commercial viewpoint as a commercial lawyer, is quite right that provided the general legal rights given to people are not undermined the parties are free to arbitrate their disputes by whatever law they wish. To that extent there is nothing particularly controversial in saying the parties could choose to regulate their disputes under Sharia Law because this is effectively a right to arbitrate they are already given. Saying that this is subject to the overall protections provided for by the law might have been thought to be reaffirming the importance of English law rather than undermining it.
However by trespassing onto family matters the judge displayed completely no understanding as to the dynamics of how "consent" might be obtained to a sharia "arbitration", and how the comments of such a senior judge would be viewed. There is considerable risk that immense pressure would be put on Muslim women to settle family disputes according to Sharia Law. The courts would simply lack the ability to ascertain whether consent had been freely forthcoming. Sadly Lord Phillips does not seem to have thought through the practical consequences of this. What is said is technically correct but in practice is likely to be seen as a green light for pushing for sharia arbitration in all sorts of circumstances.
In public relations terms it also demonstrates a lack of grasp for the public impact of the utterance. Whilst the fine technical detail is correct and unobjectionable, it is the headline which influences, and which will be remembered and acted upon long after the reasonable detail has been forgotten. This comment by such a senior judge is likely to encourage those who want to make sharia law binding, however limited in scope and application. These comments will be used by them as proof that ultimately there will be support within the legal establishment for this.
Distinguished lawyers do not always have political skills. Hopefully this lecture will not come back to haunt either Lord Phillips or anyone else.