The clash between Parliament and Judges

The clash between Parliament and the Judiciary in recent weeks has raised important questions about the independence and neutrality of the judiciary.

It is important to recognise that the twin issues of independence and neutrality are distinct, but they do overlap when we consider who it is that should be making the law.

This debate is also a useful one to consider in terms of constitutional reform issues.

Over 30 years ago JAG Griffith pointed out that judges had, ‘acquired a strikingly homogeneous collection of attitudes, beliefs and principles, which to them represent the public interest.’ They are on the whole, male, white, public school, and Oxbridge educated. And recent attempts to open up the appointments procedure have been a disappointment. True, the makeup of the judiciary mirrors existing power structures and cannot be blamed on the judiciary. Its composition is no more elitist than top echelons of the executive: only three Prime Ministers in the past hundred years did not attend Oxford University. But there are suggestions that a body drawn from a very narrow social and professional base is left open to accusations of being out of touch and this poses questions about their role.
The Guardian this week focused on the composition of the Supreme Court.

“[No one] would anyone question the intellectual merit of the 12 supreme court justices. But in spite of some good intentions to diversify the bench, the 12 are all white, male (with the exception of Baroness Hale) and middle class. Some of this is hard to change, but this is a body that, in its own words, shapes our society and directly affects our lives, a body that unavoidably takes decisions that raise questions of social values. The court is in a weaker position than it could be to see off attempts to undermine its legitimacy. A broader approach to appointments would help do the job better.

It is common for judges to lament the supreme court’s lack of diversity and at the same time to insist candidates can only be chosen from the ranks of the most senior judges. Yet it was disappointing that when, in March, an appointment was finally made from outside the appeal court for the first time, it went to Jonathan Sumption QC – an undeniably brainy barrister, but as white, male and middle class as the rest, and thus hardly an inspiration to less orthodox candidates. From the bottom rung of the judiciary to the top, only a fifth of judges are women, and less than a 20th come from black and minority ethnic groups; in the high court and court of appeal – the gene pool for the supreme court – just 20 of 153 judges are women.

The judges are allowed to consider diversity when appointments are made. Yet they do not appear willing enough to rise to the challenge of venturing beyond the tried and tested. It should be possible, once the high standard of merit is passed, to find candidates from more diverse backgrounds. It would be desirable to set targets as milestones against which progress could be judged. Otherwise the senior courts risk fulfilling the gloomy prediction of a former attorney general, and becoming a self-appointing oligarchy – and thus ultimately one that is less able to challenge parliament and defend itself effectively against parliamentary retribution.”