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The Sunday Times
October 1, 2000
Comment - Pr0file
The British judge
Sentenced to hold our lives in their hands
The traditional bewigged and beribboned British judge (Eton, Oxbridge, Temple) has never been a figure to inspire much sympathy. Rather, it is envy - of the public school background, the elegant house in the country, the membership of the Athenaeum.
Judges once hovered, Buddha-like, above the political sea. No more: blow after blow has been dealt to their honours' judicial dignity. Bombarded by "gender awareness" and equality training, not to mention government booklets on how to be media-friendly, judges have - as never before - found themselves in the political spotlight and sometimes in the political firing line.
Now they face a new challenge. Tomorrow the European Convention on Human Rights is enshrined into British law - the Scots have already adopted it - and a long line of activists, crackpots and pressure groups is queueing up, hoping to grind their axe on the convention's judicial wheels.
How will our judges shape up? The Human Rights Act gives them powers previously undreamt of: to make declarations against government institutions, personnel and policy, if they deem any of them to be breaching an individual's rights.
These rights are clearly set out in a number of articles, ranging from the right to life, to freedom of expression and association. In theory, a complaisant government would take back offending legislation and amend it accordingly. But already Lord Irvine, the lord chancellor, who straddles both camps, is insisting that parliament will retain the upper hand. In "rare" cases, he said last week, the government would not comply with a court's ruling. The stage is set for a clash of the titans as parliament and the courts battle to decide who is top dog.
Recent weeks have shown that to be a judge sometimes does require the wisdom of Solomon. Lord Justice Ward, one of three appeal court judges who had to decide the fate of the Siamese twins Jodie and Mary, spoke of his "sleepless nights" as he wrestled over a judgment that would inevitably mean killing Mary. He faced "dealing with the most dramatic questions of life and death".
Now their lordships will be considering issues that could send waves of change through our society. The judges' decisions on what does, or does not, constitute a breach of our human rights is predicted, for instance, to make gay marriage inevitable. It could also alter irrevocably the balance of power in schools and between employers and workers. Pupils will be able to challenge school uniform on the grounds that it contravenes freedom of expression. Employees' right to privacy will ban employers from monitoring e-mails.
A plethora of test cases is waiting in the wings. Backed by Liberty, the civil rights group, Ron Strank and Roger Fisher, a gay couple who have just celebrated 40 years together, are arguing that the NHS pension scheme contravenes their right to peaceful enjoyment of possessions and discriminates against them because, as they are not married, they cannot claim benefit from each other's pensions should one of them die.
A judgment in their favour would force the NHS and some other public institutions to alter their policy and would apply not just to gay couples but to all unmarried couples.
A family from Kent is preparing to challenge the government's policy on class sizes because their younger child has been denied a place at a local primary school (the appropriate class is full) even though an older sibling already attends the school (it breaches the right to family life under article 8).
A PhD student who was thrown off her Cambridge course after a critical - and secret - report from a professor has already fought through the courts to have the contents of the report revealed. She is now seeking to overturn a court decision against her on the basis that her right to a fair hearing was breached.
Liberty is doggedly intending to prod and test every aspect of British life to make sure it conforms, to the extent that it has dreamt up a "wish list" of cases and is searching for victims to front them.
The European Convention on Human Rights was drawn up in 1950 in the shadow of the United Nations Declaration of Human Rights in 1948. It was signed by the Council of Europe, some 41 nations, and a court - the brainchild of Winston Churchill - was created in Strasbourg to which citizens of any of those nations could appeal if they felt an injustice had been done in their own courts.
The authors of this solemn document could not have foreseen the way it could be used. Now a football hooligan is to argue that having his passport confiscated is a breach of his human rights as he cannot travel on business (he is being represented by Matrix, the human rights specialist chamber whose founders include Cherie Booth, no less).
No wonder Lord McCluskie, a Scottish judge, was moved to describe the human rights legislation as "a field day for crackpots, a pain in the neck for judges and legislators and a gold mine for lawyers".
In America judges have become famous for cases that have changed the law. Abortion, for instance, was banned by statute, but made possible by an ingenious court decision that the law breached a woman's right to privacy. The American Supreme Court can overturn laws made by Congress.
British judges will not have the same power. They will be able to make declarations that certain laws breach human rights, but parliament can choose to ignore them. Ruling on human rights gives judges not just a legal but also a solid moral platform. Clashes between judiciary and government - most likely in areas such as terrorist legislation - will be bitterly contested.
Ambitious and flamboyant judges have long had a hand in shaping the law. Lord Denning, the late master of the rolls, was appointed in 1946 to be chairman of a committee concerned with matrimonial law. Separation during the war led to a flood of petitions for divorce and Denning set in motion easier divorce and fairer property rights for women.
Nor are judges total strangers to political controversy. In 1997 Lord Bingham, then the country's most senior judge, attacked Michael Howard, then home secretary, over proposals to speed up the court system. The right to voice their views in the political arena has been the province of very senior judges. It will now effectively be extended to judges as a whole.
Much of the speculation surrounding the introduction of the act assumes that everyone who brings a case will win it. The Scottish experience says otherwise. Of the 600 cases heard so far, just 16 - less than 3% - have been successful.
In England, similarly, the floodgates will open but probably only by an inch or so. Although we have moved on from the days when a judge could pronounce that a woman who was sexually assaulted was "asking for it", or inquire in all seriousness "Who is Gazza?", British judges are still a conventional lot.
The real impact of the act will only be felt with time, when the rush of flaky cases that greets its inception dies down and the tougher, meatier ones come along. Francesca Klug, whose history of the human rights laws, Values for a Godless Age, is about to be published, says we are in "a period of fantasy land".
"It feels a bit hysterical," she says. "But I think as time goes by and judgments start to come through, it will become clear that what we are really aiming at here is a shared set of ethics, a code we can all live by, some common values for people of all religions or none.
"People are always asking me: is it the end of school uniform? Is it the end of school discipline? But that is to miss the point. Anyway, do they really think British judges are incapable of dealing with these matters?"
The government has made loud noises about wanting to make the judiciary more representative of the community it serves, but the impact so far has been virtually zero. Just 11% of judges - still appointed through the "old boy" network of recommendation - are women and only 1.7% are of ethnic origin. These new judges tend to be largely in the lower ranks. The big decisions - challenging the government - will be made at the top.
"The bar is changing - I am a grammar school boy - and the judiciary is changing slowly," says Allan Levy QC. "But at the highest level there are judges who are every bit as jealous of individual liberties as any left-wing firebrand. That's what makes this country what it is."
