The New Judiciary

The Effects of Expansion and Activism

Kate Malleson

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781351885072
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

During the last thirty years, the judiciary has undergone an unprecedented expansion in its size and power. Judges now have more influence over our private and public lives than ever before. The effect of this change has been to transform the judiciary from an inward-looking elite into an increasingly heterogeneous professional body. 'The New Judiciary' examines the developments which have taken place in the appointment, training and scrutiny of judges as a result of the expanding judicial role. It highlights the increasing tension between the requirements of judicial independence and accountability which these changes are producing. The traditional insulation of the judiciary from all external influences is being challenged by the need for greater openness and public scrutiny of the judicial process. The passing of the Human Rights Act 1998, incorporating the European Convention on Human Rights into domestic law represents another stage in this process by expanding the policy-making role of the senior judiciary still further. As a result, the continuing modernisation of the judiciary, which is the subject of this book, will be a increasingly important feature of the legal and political process in the years ahead.

1 Introduction

 

 

The English judiciary is not generally regarded as an institution that welcomes radical change. Yet despite its reputation for conservatism, it is currently undergoing a process of transformation in its structure and style which has long-term implications for its future role. The origins of this development are the growth in size of the judiciary and the expansion of its policy-making role. In 1970 there were 288 judges. By 1998, this figure had increased to just under 3,000.¹ As the number of judges has grown, so too has the scope of their powers. The development of judicial review since the 1960s has meant that judges’ decisions have come to impact on more areas of public life than ever before. The incorporation of the European Convention on Human Rights in the Human Rights Act 1998 will take this activism a stage further by giving judges the power to determine whether legislation and the policy-making decisions of public bodies conform to the provisions of the Convention. The combined effect of these quantitative and qualitative changes has been to turn judging into a ‘growth industry’ (Stevens, 1993a, p. 12).

This book examines the impact of the expansion in the size and role of the judiciary on the way judges are appointed, trained and scrutinised. It highlights the growing formalisation and professionalisation of those processes and the increasing pressure for greater accountability and openness. In some areas the changes are already substantial, in others they are only just beginning. In 1973, Sir Robert Megarry, a High Court judge, described the main features of the English judiciary in the following way: ‘Machinery for discipline? Nil. Training? Nil’.² It is unlikely that Sir Robert would have predicted (or indeed approved of) the central and expanding role which judicial training now occupies in the judicial system. The disciplinary machinery, in contrast, remains virtually non-existent, but is very unlikely to do so for much longer. Here the pressure for the creation of formal complaints and disciplinary systems is building up, and significant reforms now seem inevitable. Similarly, the traditionally closed and relatively informal appointments system is in the process of being overhauled. The recent introduction of public advertisements, interview panels, appointment criteria and job descriptions would have been almost unthinkable thirty years ago. The proposal for establishing a judicial appointments commission, which now commands widespread support, was no more than a fringe idea in 1970.

An important underlying factor in these developments has been the increase in public attention which the judiciary attracts. Until relatively recently judges were widely considered to be above criticism and were not required to explain or justify the way they worked. Today, they are regularly subjected to media scrutiny and are, in turn, increasingly willing to engage in public debate about the judicial system. As the judiciary loses its fear of publicity, the senior judges are beginning to develop a more professional approach to the media and to appreciate the need actively to promote the public support which once they took for granted.

These developments are not unique to England and Wales. The creation of more formalised, professionalised and accountable processes are evident in many judiciaries around the world. The forces of globalisation which have affected all areas of political and economic life have been particularly striking in the judiciary because of the stark contrast with earlier times. The inward-looking culture which was so characteristic of the old judiciary is gradually being abandoned as judges come to see themselves as members of a global legal community where knowledge and ideas are exchanged across jurisdictional boundaries. The emergence of the new judiciary must therefore be understood as part of a global process of change. The details and timing differ in different countries but the general trends are strikingly similar throughout liberal democracies. The ways in which other judiciaries have adapted in response to these general forces of change provide a pool of experience for the judiciary to draw on. In the past, the judges of other countries, particularly those of the Commonwealth, looked to England and Wales for guidance when shaping their judicial processes. Increasingly, those who once modelled themselves on the English judiciary now provide the models for England and Wales.

Despite the international scope of these developments, they have, to date, attracted relatively little attention outside legal circles. One reason being that the judges’ continuing attachment to displays of tradition in matters of ritual and form has had the effect of reinforcing the popular image of the judiciary as being committed to archaic practices. In 1992, Lord Taylor, on his appointment as Lord Chief Justice, proposed that the judges should dispense with their wigs. His suggestion, which attracted considerable media attention, was ultimately defeated by the opposition of other senior members of the judiciary. In November 1997, Lord Irvine, shortly after his appointment as Lord Chancellor, announced that he would be dispensing with his wig and regalia for daily use, though with no plans to require other judges to follow his lead. Thus far, few have shown any enthusiasm for doing so.

Such examples of the strong role of continuity and tradition which underpins the culture of the judiciary have served to obscure the extent of the changes which are occurring. They have also reinforced the image of the judiciary as an exclusively legal institution which lies outside the mainstream political structure. Changes to its size, structure and processes are therefore generally viewed as being of relevance to lawyers but of limited concern to society at large. However, the new role which the Human Rights Act creates for the judges will do much more than the incremental expansion of judicial review to raise public awareness of the increase in judicial power. On the day that the Government published the White Paper on incorporating the European Convention on Human Rights, one newspaper ran the headline: ‘Judges given more power’. While it is generally recognised that the Act involves a redistribution of political power, there is surprisingly little comment about the fact that we are about to transfer power to a body about which we know very little other than that its members are demographically unrepresentative.

As awareness of the implications of the increasing policy-making function of the judges grows, the debate on the role and function of the judiciary is very likely to attract the interest of a wider audience. To date, what little debate there has been about the expanding role of judges has generally focused on the broad political and social consequences of incorporating the European Convention on Human Rights. Will the change provide better protection for minority rights? Will it undermine the democratic process? Will the judiciary intrude upon areas which are rightly the remit of the executive or Parliament? Less attention has been paid to the implications of increasing judicial power for the judiciary itself. As the power of the judges grows, it will become increasingly obvious that the way in which judges are appointed, trained and scrutinised is of relevance not just to the judiciary but to the wider political process.

The claim that the judiciary is part of the political landscape is not a new one. The myth that judges operated outside politics was finally laid to rest in 1977 with the publication of John Griffith’s The Politics of the Judiciary. His central thesis today reads almost as a statement of the obvious: ‘Judges are part of the machinery of authority within the State and as such cannot avoid the making of political decisions’ (1977, p. 190). However, at the time, his arguments were highly controversial and attracted strong criticism from commentators both on and off the bench (see, for example, Devlin, 1978; Lee, 1988). But even his critics would acknowledge that the fact that judges can and do make political decisions has never again been seriously questioned as a result of his work (Drewry, 1992, p. 10; Jacob et al., 1996, p. 11).

In one respect Griffith’s thesis has grown stronger as judicial activism has increased. In 1978 Lord Devlin, in a review of Griffith’s work, argued that it was extravagant to talk of the politics of the judiciary as one of the ‘major issues of British politics’ (1978, p. 510). This criticism was far more persuasive in the 1970s than it is in the 1990s. Very few judges today would argue that the judiciary plays no political role; the point of debate arises over the question of how extensive this aspect of their work is. Despite being a radical and groundbreaking work, Griffith’s analysis of judicial politics in fact understated the extent of the politics of the judiciary since it focused on one aspect of that politics; the high-level policy-making of the top judges in the High Court and above in such fields as industrial relations, police powers, immigration, housing and public order.³ Quantitatively, such cases are rare. The senior judges make up less than ten per cent of the judiciary and moreover spend much of their time in decision-making which has little or no policy-making content. But this small policy-making area does not define the limits of judicial politics. Political action is not confined to the work of those institutions traditionally regarded as composing the political machinery, but encompasses all decision-making which involves an authoritative allocation of values.⁴

The strength of this wider perspective on politics is that it emphasises the distinction between politics and partisanship. One reason why judges have been keen to stress the apolitical nature of their work is that political activity has traditionally been associated with the partisan support for the policies of political parties. If politics is broadened beyond this narrow definition, then the political activity of the judges can be distinguished from the party system and understood in more general terms as the exercise of power by those in authority. Although judges still shun the word politics, they are increasingly willing to acknowledge that they exercise power both over individuals and the process of government:

Judges exercise power. They take decisions which affect the lives and interests of people. They make judgments on matters that affect the way in which we are governed (Lord Steyn, 1997, p. 84).

In a small number of high level cases, judges reach policy decisions which directly affect society as a whole. More commonly, on a day to day level they authoritatively allocate value, whether that value takes the form of privilege, status, advantage or money (Jacob et al., 1996, p. 8). The job of the judges, even at the lowest ranks where they perform a social service function by resolving day to day disputes with no direct influence on public policy, is inherently political in the sense of being the exercise of: ‘human influence over inter-personal relations’ (Bell, 1985, p. 54).

This wider definition of judicial politics has, to date, had only a limited impact on the analysis of the judiciary. Nevertheless, it represents an important change of approach because if the judiciary is reconceptualised as an inherently political institution then the way in which judges are appointed, trained and scrutinised needs to be rethought. The background of the judges, the mechanisms and criteria used for selecting them, the skills which they need to acquire, the way in which their performance is reviewed and improved – all these issues will influence the exercise of judicial power in its broadest sense. One effect of such a redefinition of judicial politics is to draw the judiciary out of its specialist legal niche. While it continues to be believed that 90 per cent of the time of 90 per cent of judges is spent in non-political activity then the structure and processes of the judiciary as a whole need not be the subject of general public interest. However, if all judges are viewed as engaged in political activity as decision-makers who authoritatively allocate value, then the way in which they are appointed, trained and scrutinised should be a matter of general public interest and the subject of wider debate.

This revision of the judicial function also has an effect on the role of accountability. If judging is per se a political activity, then the public are entitled to demand that the judges are socially and politically accountable. Traditionally the judges have resisted this pressure on the grounds that increasing accountability would undermine judicial independence. As the role of the judiciary has expanded, the freedom from accountability which the judiciary traditionally enjoyed has become increasingly untenable. The pressure for greater accountability is a recurring force behind many of the changes reviewed in this study and it is this conflict between the requirements of judicial independence and accountability which lies at the heart of the current transformation of the judiciary.

Notes

¹ The ranks of the judiciary are Law Lords, Lords Justices, High Court Judges, Circuit Judges, Recorders, Assistant Recorders, District Judges and Deputy District Judges. Charting the expansion of the judges is difficult due to the lack of accurate statistical information. Before 1984, the judicial statistics were not collated in any systematic form. The Lord Chancellor’s Department’s figures are, by its own admission, rather unreliable before that time. Although the workload of the courts began to grow in the post-war period it was not until the 1970s that the significant expansion in numbers of judges occurred. The creation of the Crown Court in 1971 led to an unexpected increase in the caseload which required a significant expansion in the size of the judiciary and, in particular, the increased use of part-time judges. Speaking in 1973 at an international symposium on the judicial system, Sir Robert Megarry commented on the small size of the English bench in comparison to that of Canada. He stated that although the effect of the Courts Act would be significant, he did not expect that it would alter the size and make-up of the bench (Megarry, 1973, p. 105 [?]See also JUSTICE, 1992, p. 6)

² Quoted in Morton, Law politics and the judicial process p.100.

³ The number of senior judges had grown from approximately 30 to approximately 140 as the size of the judiciary expanded by the time of the 1997 edition.

⁴ This approach has a long pedigree. See, for example, Easton, 1953.

2 Activism

The development of judicial review over the last 30 to 40 years has transformed a small element of the courts’ work into an extensive field of law. Successive areas of public life have been brought within the scrutiny of the courts to the point where no field of government activity is off-limits. The publication of a guide to civil servants in 1987 and updated in 1995 entitled The Judge over your shoulder illustrates the extent to which the judges have come to oversee the work of government in its broadest sense. This process of increasing judicial activism is about to enter a new phase with the passing of the Human Rights Act incorporating the European Convention on Human Rights into domestic law. The exact effects of the change are still very much open to debate, but few doubt that one result, in the short term at least, will be to fuel the growth of judicial activism.

This expansion of judicial power is redefining the role of the judges in ways which are only just starting to emerge. As well as raising implications for the political system at a general level, the changes have particular consequences for the structure of the judiciary and the processes by which it operates. Some indication of the likely direction of these trends can be gleaned by reviewing the experience of the judiciaries of other countries since the developments in judicial activism in England and Wales are mirrored by strikingly similar changes world-wide. The process of judicialisation whereby the courts have edged their way into the political arena, is an experience common to all liberal democracies to a greater or lesser extent. The different historical and legal contexts may have resulted in differences of emphasis and style but the trends of expansion are replicated across many different jurisdictions, both common law and civil law, federal and unitary.

What follows is an overview of the emerging expansion of judicial power through the growth of judicial review and the incorporation of the European Convention on Human Rights which places this development in a global context and explores the implications for the judiciary in England and Wales. The growth of judicial activism underpins the changes in judicial training, the appointments process and systems of scrutiny examined in later chapters. It is also is a key factor in the increasing tension between the requirements of accountability and independence which is a recurring theme in the developments in these areas.

The development of judicial review

Judicial restraint

The eighty year period from the 1880s to the 1960s can be seen as an aberration in terms of the long-term history of the judiciary. Throughout that time the power of the judges was unusually limited. Having once played an active role in the development of public policy, judicial power waned in the twentieth century as the expansion of the civil service and the state reduced the role of the courts (Abel-Smith and Stevens, 1967, p. 289). In the immediate period after the Second World War the judges effectively removed themselves from sensitive areas by...

Table of contents

• Cover
• Half Title
• Dedication
• Title Page
• Copyright Page
• Table of Contents
• Acknowledgements
• Foreword
• 1 Introduction
• 2 Activism
• 3 Accountability and Independence
• 4 Appointments
• 5 Training
• 6 Scrutiny
• 7 Conclusion
• Bibliography
• Index