Friday 13 June 2014, Jason Smith

We shouldn’t put our faith in judges

A recent event on the problem of surveillance suggested that the best solution was oversight by the courts. That's a mistake.

The ‘Don’t Spy On Us’ day of action at Shoreditch Town Hall on Saturday 7 June was, despite being something of a Guardian journalists love-in, a well-attended event with a good line-up of speakers. Organised by an executive committee comprised of Article19, Big Brother Watch, English Pen, Liberty80, Open Rights Group and Privacy International, it sought to get to grips with and work out strategies for fighting back against the mass surveillance that society endures.

There was some grumbling on Twitter that the day focused too much on state, rather than corporate surveillance and data handling privacy issues. For me, the problem with all the sessions I attended was with the solutions put forward rather than in the identification of the culprit. The problem it seems is with oversight.

Quality oversight, we were told, must be a transparent process that is kept away from political interests. Therefore, politicians are the problem and neutral judges the answer. Judges, after all, are not tainted by the grubbiness of having to win elections. They can be principled, steady and not flip-flop one way then t’other depending on the political mood.

It’s hardly surprising that our current crop of vision-lite, managerial technocrats in the Westminster bubble do not inspire confidence. Many have no connection with the grass roots of their own party and tend to blame the electorate for their own obvious inadequacies at convincing us to bother voting. When we do vote, as in the recent European elections for instance, we’re told we’ve voted for the wrong party. But putting our faith in judges is not the answer.

There seems to be no end of issues that judges are called on to address. The law is increasingly involved in a plethora of moral, political and social arenas, which in the past were beyond judicial intervention. Courts have recently decided cases about welfare reforms, hospital closures, HS2, assisted suicide, genetics, compensation for Kenyan Mau Mau victims of British colonial rule, and whether a hotelier can refuse a hotel bed to a gay couple. The law is now seen as a valid vehicle to challenge and punish discriminatory attitudes, in the name of equality and diversity, through the Equality Act.

This is an evasion of our responsibility as citizens in a democracy. Not only can we not vote out judges we don’t like - they’re above such things as being accountable - but handing over our authority to unelected, unrepresentative judges is a missed opportunity. Challenging the culture of surveillance, both state and corporate, will come from recreating a vibrant public square: a space where ideas are discussed openly, free from interference by the authorities and judges, one that will allow the personal, social and intellectual experimentation that was once considered the foundation of progress. We cannot avoid difficult moral questions by handing them over to a judge to decide. They know no better than we do what should be done.

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