Do Judges Represent Society Fairly?

The conventional constitutional significance of civil liberties is one of individual freedom, except for where rights have been limited by law or have developed in an ad hoc way through law and statute. Nonetheless, the status of the European Convention on Human Rights and Fundamental Freedoms (hereinafter ECHR), provides a code of human rights over and above these freedoms and rights; they are enforceable by the individual citizen against his or her State. The incorporation of these Convention rights under the Human Rights Act 1998 (hereinafter HRA 1998) is a first step towards the better protection of rights under English Law.

It is in agreement with Slapper and Kelly that this essay makes its point. If law were completely beyond the capacity of the judges to control their own ends, then race, class, and gender placement of individual judges would be of no consequence, as they would not be in a condition to manipulate the operation of the law.^[1] From their material, it can be seen that Slapper and Kelly perceive that although judges are supposed to merely apply, rather than create, law, they enjoy a large degree of discretion in determining which laws to apply. In consideration of this facility to create law, it is essential to guarantee that the judiciary epitomizes society in relation to which it has so much power, and moreover, to ensure that it does not simply signify the views and attitudes of a self-perpetuating elite. The Articles to which this argument relates, are that of Article 6(1) and 14 ECHR.

Article 6(1) ECHR states that:

In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgement shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.

Article 14 ECHR states that:

The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

Article 14 therefore does not provide a right to non-discrimination per se but, rather, not to be discriminated against in consideration of any other rights and freedoms.

In terms of appointment, the judges in the United Kingdom are unelected and hence enjoy no ‘mandate of democracy.’ The judges are subordinate to the determination of the elected legislature and, owing to this subordination and the separation of powers, employ considerable caution concerning the suitable scope of the jurisdiction of the courts.^[2] Criticism has been levelled at the particular race, class and gender position of the majority of the judges. Indeed, it is a tangible and well documented fact that the majority of judges are white, male, middle or upper class and middle aged or elderly. The fundamental question is whether such instances are exceptional or whether it is indicative of the norm today. Certainly, ten years ago, the Lord Chancellor’s office revealed that 80% of Lords of Appeal, Heads of Division, Lord Justices of Appeal and High Court judges were educated at Oxford and Cambridge.^[3] As Slapper and Kelly maintain, the Lord Chancellor’s Permanent Secretary, Sir Thomas Legg, ‘showing insouciance to the level of arrogance,’ stated that:

It is not the function of the professional judiciary to be representative of the community. Such a response, if it is true, or even acceptable, must surely undermine the right of such an unrepresentative body to take action in the name of the majority, as the courts do in their use of judicial review.

The question, in relation to Article 6(1) ECHR, is whether this leads to the conclusion that judges reach inherently biased decisions. Furthermore, this could have implications for Article 14.

The condition of judicial impartiality, in relation to Article 6(1), was tested before the European Court of Human Rights, in a judgement which has connotations for the task of the Lord Chancellor.^[4] The case related to the position of the Deputy Bailiff of Guernsey as President of the States of Deliberation, Guernsey’s legislative body, and then as the exclusive judge of law in dealings relating to the applicant’s planning application which had been refused.^[5] The Court of Human Rights held that the Deputy Bailiff’s status was ‘capable of casting doubt’ as to his ‘impartiality’ and as a result was in contravention of Article 6(1). The decision was reached on the basis of the Court’s previous understanding in Findlay v United Kingdom.^[6] This understanding was based on the Court’s comments of the requirements of ‘independence’ and ‘impartiality.’ On independence the Court acknowledged that respect had to be afforded to the ‘manner of appointment of its members and their term of office, the existence of guarantees against outside pressures and the question whether the body presented an appearance of independence.’ On impartiality, the Court stated that:

(the tribunal) must be subjectively free of personal prejudice or bias. Secondly, it must also be impartial from an objective viewpoint, that is, it must offer sufficient guarantees to exclude any legitimate doubt in this respect.

The facts of the case demonstrate no question of actual bias on the part of the Bailiff, for that reason, ‘the mere fact that the Deputy Bailiff presided over the court … was capable of casting doubt on his impartiality.’ There was, hence, an infringement of the requirements of fair trial before an independent and impartial tribunal.

The case is illuminating in terms of its perception on impartiality and how it should be. On this footing, there seems to be no contrary argument to stating that the current appointment strategy of the judiciary is fundamentally flawed. Griffith continues to argue that the judges are hence ill-equipped to suppose the ‘mantle of guardian of individual rights’ in the face of executive power and parliamentary sovereignty. It is true, as Griffith argues that judges are traditionally selected from a consistent and restricted socio-economic class. The perspective was succinctly explained by Barnett:

Judges by virtue of their background and training, it is argued from this perspective, are not suited to the brief of protecting the rights of the poor, socially or economically disadvantaged, or members of groups and associations in society whose outlook and background is so very different to that of the elite judges.^[7]

Griffith and other academics have expressed their reservations about the level to which the ECHR will hand power to an unelected, unaccountable, inherently conservative and unreformed body, as they allege the judiciary to be. Simon Lee however contends that just because judges are white, old, rich, upper class and educated in public school and Oxbridge, does not mean that they will all necessary think the same way, although, it is argued that individuals from that distinct background generally tend to be conservative in attitude.^[8]

On the other hand, a recent report by the Department for Constitutional Affairs proposes to open up the judiciary to more men and women of diverse backgrounds.^[9] The aim is to ‘improve the calibre of those appointed to judicial office, raise confidence in the judicial system and benefit the administration of justice.’ This objective intends to be one for the long-term. The process will be subject to regular reviews and progress monitoring and aims to increase diversity in other institutions and fields of work.

From a positive standpoint, the judiciary, once appointed enjoys security of tenure and, while subordinate to Parliament’s sovereignty, is uncontrolled by the government. Its function in light of judicial review of administrative action and in relation to the interpretation and application of European community law, the judges have, according to Barnett, ‘increasingly displayed a robustness which undermines the arguments about an ideological alignment with the interests of the executive, especially an executive with a conservative complexion.’^[10]

Despite the criticisms addressed in this essay, Lord Lester of Herne Hill has claimed that the judges to date have been very successful in interpreting the essential provisions of European Community Law.^[11] Indeed, prior to the passing of the HRA 1998, Lord Lester, respecting the ‘radical departure from traditional canons of statutory interpretation,’ asserted optimism:

Would they (the judges) use it (the Convention) to go much further than the traditional position in which the courts seek to interpret ambigious legislation so as to be in accordance with rather than in breach of the Treaty obligations undertaken by the United Kingdom? I hope and believe that they would indeed do so, seeking to avoid inconsistences by limiting statutory provisions that encroach upon Convention rights, and implying the necessary procedural and other safeguards into legislation.^[12]

However, by way of conclusion, it is submitted that the long-term effectiveness of HRA rests on the willingness of the judges robustly to defend rights and to read Convention rights in a manner favouring individual protection. Decisions of an elitist judiciary simply represent values and interests of a ‘limited and privileged’ section of society as a whole.^[13] Even if Griffith and academics alike are inaccurate, the new recommendations designed to change the current system, are highly necessary to remove even the possibility of these accusations,^[14] for our fundamental freedoms run the risk of being tarnished.

Bibliography

Slapper, G.J., Kelly, D. (2004) English Law, 2nd edition, London: Cavendish

Griffith, JAG, The Politics of the Judiciary, 5th ed, 1997, London: Fontana

Barnett, H, Constitutional and Administrative Law, 4th ed, 2003, Cavendish

McGonnell v United Kingdom (2000) The Times, February 22: Case reported in Op Cit 1

{1997) The Times, February 27: Case reported in Op Cit 1

Lee, S, Judging Judges, 1988, London: Faber & Faber

http://www.dca.gov.uk/judicial/ja-arep2004/partone.htm

Lord Lester, Fundamental Rights, [1994] PL 70

Lord Lester, First Steps Towards a Constitutional Bill of Rights, (1997) 2 EHRLR 124, p 127

^[1] Slapper, G.J., Kelly, D. (2004) English Law, 2nd edition, London: Cavendish

^[2] Griffith, JAG, The Politics of the Judiciary, 5^th ed, 1997, London: Fontana

^[3] Op Cit 1

^[4] Barnett, H, Constitutional and Administrative Law, 4^th ed, 2003, Cavendish

^[5] McGonnell v United Kingdom (2000) The Times, February 22: Case reported in Op Cit 1

^[6] {1997) The Times, February 27: Case reported in Op Cit 1

^[7] Op Cit 4

^[8] Lee, S, Judging Judges, 1988, London: Faber & Faber

^[9] per Lord Falconer of Thoroton, Secretary of State for Constitutional Affairs, October 2004, at http://www.dca.gov.uk/judicial/ja-arep2004/partone.htm

^[10] Op Cit 4

^[11] Lord Lester, Fundamental Rights, [1994] PL 70

^[12] Lord Lester, First Steps Towards a Constitutional Bill of Rights, (1997) 2 EHRLR 124, p 127

^[13] Op Cit 1

^[14] Op Cit 1