How do we want our judges to make their decisions? Robert Jenrick, shadow justice minister for the Tories until his defection to Reform in January, told the Conservative Party Conference last year that ‘judges who blur the line between adjudication and activism can have no place in our justice system.’ Judicial activism is a habitual complaint of those on the right when legal decisions don’t go their way. In 2016 the Daily Mail called the lord chief justice and two of his colleagues ‘enemies of the people’ for ruling that the then prime minister, Theresa May, couldn’t trigger Article 50 – which started the process of leaving the EU after the Brexit referendum – without a vote in Parliament.

In recent times complaints of judicial activism have often concerned the interpretation of the Human Rights Act and the decisions of the European Court of Human Rights. ‘While the meaning of a human right does not change over time,’ Lord Bingham said in a lecture in 2005, ‘its content and application may. It is for the appropriate court to interpret and apply the relevant provisions in the light of evolving values, standards, needs, social conditions and circumstances.’ He went on to quote Lord Justice Simon Brown, from a Court of Appeal judgment in 2003: ‘Judges nowadays have no alternative but to apply the Human Rights Act 1998. Constitutional dangers exist no less in too little judicial activism as in too much. There are limits to the legitimacy of executive or legislative decision-making, just as there are to decision-making by the courts.’ A somewhat more thoughtful critique comes from the lawyers behind the Judicial Power Project:

Judicial overreach increasingly threatens the rule of law and effective, democratic government. The project aims to address this problem – restoring balance to the Westminster constitution – by articulating the good sense of separating judicial and political authority. In other words, the project aims to understand and correct the undue rise in judicial power by restating, for modern times and in relation to modern problems, the nature and limits of the judicial power within our tradition and the related scope of sound legislative and executive authority.

It isn’t controversial to expect courts to be politically neutral when deciding cases that have great political impact, and it is all too easy for the losing side to ascribe political bias to the judge. Finding proof that the judge’s personal or political views have determined a decision is harder, in the UK at least. Compare this with the US Supreme Court, where alignment with the president’s politics is a condition of getting the job, the expectation being that you will do as he wishes.

Peter Oldham’s Law and Politics at the National Industrial Relations Court 1970-75 (Hart, £90) tells the story of John Donaldson, whose career might seem to provide an example of right-wing legal activism in the UK. As a young barrister in 1958, Donaldson co-wrote a policy paper produced by the Inns of Court Conservative and Unionist Society and given the title ‘A Giant’s Strength’. It discussed how to bring the supposedly over-powerful trade unions under the rule of law. His co-authors included Geoffrey Howe, later chancellor and foreign secretary in Margaret Thatcher’s government.

Donaldson had a successful career at the Bar, took silk and was appointed to the High Court bench in 1966 at the relatively young age of 45. In 1969, Barbara Castle’s white paper In Place of Strife, the Labour government’s attempt to reform industrial relations, met fierce opposition from the unions and was abandoned. When the Tories came to power in 1970, they were determined to bring the unions under control. Donaldson wrote to Howe, now solicitor general, with suggestions for what became the Industrial Relations Act of 1971. Later, he advised the Department of Employment on how the legislation might be amended.

The judge’s standard task is to apply statutory provisions, and if necessary to interpret them in accordance with what he or she believes the intentions of Parliament to have been. Advising ministers and civil servants on how to amend the law is, in Oldham’s understated words, ‘rarely part of a judge’s constitutional role’. ‘Rarely’ does a lot of work in that sentence. Donaldson was appointed to run the new National Industrial Relations Court (NIRC) established by the legislation, and later acknowledged that he did ‘rather peculiar things’ as its president, including continuing to have contact with officials at the Department of Employment. Oldham persuasively argues that Donaldson covered up his authorship of notes to civil servants there.

The court, and Donaldson himself, became notorious for imprisoning the striking dock workers known as the Pentonville Five in July 1972, after finding them guilty of contempt of court for refusing to obey his order to stop picketing the Midland Cold Storage Company in Newham. He regarded their defiance as a serious threat to the rule of law. Their imprisonment triggered a walkout by thousands of dockers, as well as secondary action by printworkers, miners, transport workers and many more. After the TUC called a one-day general strike, the crisis was averted when the House of Lords – then the UK’s highest appeal court – accelerated the decision in another trade union case, which with a bit of legal legerdemain meant that the imprisoned dockers could be released. Oldham details the complex dance of litigation and off-stage fixing which drew senior politicians and Lord Denning, then Master of the Rolls, into the mess Donaldson had created. In his memoir Denning wrote that ‘the lesson to be learned from the dockers’ cases is that the weapon of imprisonment should never be used – for contempt of court – in the case of industrial disputes.’

During the short and disastrous life of the NIRC Donaldson used strategies suggested in ‘A Giant’s Strength’. In a case from 1973, he ordered the sequestration of £100,000 belonging to the engineering workers’ union, the AUEW, and fined it £75,000 – once again this was a punishment for contempt of court, but this time on the part of the union itself rather than individual strikers. He found it had shown ‘wilful defiance of the law … Power carries with it responsibility.’ The union leadership had ‘a duty … to take account of the interests … of the nation as a whole’. That is not normal language for a court judgment. The case prompted political outrage and calls for Donaldson’s dismissal, which went unheeded. Oldham cites letters of support from judicial colleagues as well as some mild rebukes, which offended the thin-skinned Donaldson.

Labour repealed the Industrial Relations Act when it returned to power in 1974 and the NIRC disappeared with it. Donaldson went back to the High Court, where he presided over the trials of the Guildford Four in 1975 and the Maguire Seven in 1976, two of the worst miscarriages of justice in modern times. In the Guildford Four trial, he suggested to the jury that if the defendants had really been beaten up by Surrey police officers, as they alleged, they would surely have reported it to the Metropolitan police. Stephen Sedley, writing in the LRB (5 March 1987) about the systemic failure to correct miscarriages of justice, described Donaldson’s comments as showing that ‘the system holds up a distorting mirror and invites the jury to see reality through it.’ The remark may give a clue to Donaldson’s understanding of the rule of law, as it is applied to striking workers as much as to victimised defendants. The 1990 inquiry into the case of the Maguire Seven identified serious errors that he made in directing the jury about the significance – or lack of it – of evidence of contamination by nitroglycerine, which had supposedly been found on the hands of the accused. When the Tories returned to office in 1979, Donaldson was promoted to the Court of Appeal and finally became Master of the Rolls, the second most senior judge in the country.

Donaldson’s career with the NIRC can be seen as an egregious example of judicial activism: secretive, condoned and connived at by the judiciary, civil service and government ministers. His sincerely held political and social views – or biases – motivated him to do justice as he saw it. And that is the problem for any judge: to distinguish where justice as the judge sees it conflicts with the application of the law. It is easy to disguise disagreement with a court’s decision as an accusation of activism. If the rule of law has meaning, it means that the judge will sometimes have to make decisions they find unpalatable. The rule of law applies just as much in cases where what Brown called the ‘limits to the legitimacy of executive or legislative decision-making’ have been overstepped. The judge must intervene. Judging is not a job for the faint-hearted.