Chapter 11: JUDGES AND DEMOCRACY Even when a man is obliged to decide cases and to be a judge, still let

t him beware of the dangers to himself, lest by judgi g per!ersely a d agai st the la"s, through entreaties or for a price, he should purchase for himself the measureless sorrows of eternal damnation for the momentary enjoyment of a paltry gain. #ra$t% ... all the judges& "ith%ut e'$epti% & are (e(bers %) the Atha eu( [a private club], and I presume that you will wish to be a member. [All judges are equal] annic!

* tr%du$ti% + Di!ersity %) Judges "he English judiciary i $ludes )e" "%(e , even )e"er bla$,s and %b%dy u der the age of -.. English judges te d t% be elderly ge tle(e most of whom have had a public school education. It is disturbing that %ur judges $%(e )r%( su$h a arr%" ra ge of the community. /% adjudi$ate $ases is to e#ercise discretion in fact finding, sentencing, applying the law and awarding costs. $uch powers sh%uld be e'er$ised by judges %) di))ere t ba$,gr%u ds, ages, races and se#es. "his is for t"% (ai reas% s.

%irst, it is i e0uitable in a democratic society that % e set %) !alues sh%uld pred%(i ate on the &ench. $econd, there is a da ger that (i %rity groups and women

see few, if any, of their number will l%se respe$t )%r the la". A (%re di!erse judi$iary is u li,ely t% be attai ed while app%i t(e t is $% )i ed t% pra$tisi g barristers1 "here are few blac!s, women and 'abour arty supporters among the ran!s of senior barristers. 2a i$, ()*+*,, ma!ing the argument for a more representative judiciary.

#rie) %!er!ie" In this chapter we will continue our analysis of the p%liti$s %) the judi$iary1 -e will argue that the judi$iary has t% be u derst%%d as a esse tial ele(e t of a de(%$rati$ p%liti$al order. .ur conception of the democratic judge requires us to ac!nowledge that his3her p%"ers t% 4rule5 are li(ited by the la"1 .ur argument will develop as follows. After a broad overview to orientate our arguments, we will outline a the%ry %) judi$ial restrai t that legiti(ately li(its judi$ial la" ma!ing. Ac!nowledging judicial law ma!ing power re0uires us t% thi , $riti$ally ab%ut the syste( %) judi$ial app%i t(e ts1 -e will engage with the seeming )ailure t% a$hie!e di!ersity/ a problem which raises questions about the resp% si!e ess %) the judges t% the $%((u ities they ser!e1

Ne" Se$ti% : /6E JUDGE AND /6E 7*M*/S O8 /6E 7A9 Role of judge in democratic polityGive objective view (not personal belief) of constitutional value by enter dialogue and be independence 0ow can we thin! about the prese t r%le %) the judge "ithi a de(%$rati$ p%lity 1 As we saw in 2hapter )3, the r%le %) the judge has $ha ged (ar,edly over the last fifty or so years. -e e#plored the %ti% %) dial%gue bet"ee the $%urts a d 2arlia(e t. -e could also, at this stage, recall our arguments from 2hapter 4 about la" a d publi$ reas% 1

 -e can now develop these ideas by referring to American scholarship (with appropriate adaptations, on the role of the judge. O"e 8iss has argued that5 [the] :j;udges5 $apa$ity t% (a,e a spe$ial $% tributi% to our social life derives not from any personal traits or !nowledge, but )r%( the de)i iti% %) the %))i$e in which they find themselves and through which they e#ercise power. "hat %))i$e is stru$tured by both ide%l%gi$al a d i stituti% al )a$t%rs that enable and perhaps even )%r$e the judge t% be %bje$ti!e 6 %t t% e'press his pre)ere $es %r pers% al belie)s, or those of the citi7enry, as to what is right or just, but $% sta tly t% stri!e )%r the true (ea i g %) the $% stituti% al !alue. "wo aspects of the judicial office give it this special cast5 one is the judge8s obligation to parti$ipate i a dial%gue

 the second is his i depe de $e.

Judges is constrained by constitutional position %iss means that the 4%))i$e5 %) the judge de)i es the r%le a d )u $ti% of judging. In other words, a judge is $% strai ed i his3her de$isi% (a,i g by the $% stituti% al p%siti% that defines his9her powers. :ote, however, a judge $% tributes t% the (ea i g %) 4%ur s%$ial li)e51 (continued below,

W atever t e different interpretation! judges are re"uired by institutional to ma#e t e law rational and structured w ic defined by legal system -e are not denying that the la" (a,i g p%"er of judges is lin!ed to their dis$reti% . As we have seen, there is a large (easure %) dis$reti% i judi$ial i terpretati% . "his d%es %t (ea that the la" is completely i deter(i ate, or that the ;p%liti$s %) the judi$iary5 are illegiti(ate. In %iss8 terms they can perhaps be seen as arguments over the terms of our 4s%$ial li)e5. Judi$ial argu(e t %!er the ature %) rights ta!es place in a ;space8 where di))ere t i terpretati% s of the law are p%ssible and di))ere t !alues compete. -e will repeatedly return to the different interpretations of the law that senior 'aw 'ords ma!e.

 6%"e!er, %ur (ai p%i t is that 6 "hate!er the i terpretati% , and, indeed, whatever the values that inform interpretation, they are to a significant e#tent defined and li(ited by the i stituti% al re0uire(e ts that la" itsel) is rati% al a d stru$tured1 /his d%es %t pre!e t 4play5 %r argu(e t %!er the (ea i g %) the la" but it (erely ,eeps it "ithi the li(its that are the(sel!es de)i ed by the legal syste( itsel). $o law is %t $%(pletely deli ,ed )r%( p%liti$s/ rather, la" is p%liti$s by %ther (ea s5 ongoing arguments over the meanings of democracy and the rule of law.

$iss% judges subject to dialogue wit in constraint- institutional limit -e can return to %iss8 analysis to clarify these points. "he li(its under which the judge %perates are (a y a d !ari%us1 %iss does indeed refer to a ;dial%gue8 6 but in a sense slightly di))ere t from the one that we have deployed in this boo!. o %iss is arguing that judges ha!e a esse tial r%le i the arti$ulati% %) the !alues by "hi$h "e li!e t%gether i a p%liti$al $%((u ity1 o 0owever, the <!alues< that are argued %!er <bel% g< t% the <publi$<. o "he current arguments are %!er the rule %) la" a d hu(a rights1 o "o clarify5 8iss argues that i a republi$ all pe%ple $% tribute t% the % g%i g debate ab%ut the ter(s %) $%((% li)e (the public <thing<,. o Judges d% s% thr%ugh adjudi$ati% .

o "his is very similar to the argument about public reason in =earey et al., and hence underlies the account of the judiciary in this chapter. o "he boo! relies on the wor! of %iss to argue that judi$ial la" (a,i g ta,es pla$e "ithi !ery li(ited ter(s1 =as stated bel%"> %iss8 understanding of dialogue is $l%ser t% %ur %ti% %) the li(its %r i stituti% al $% te't in and u der "hi$h the judge de$ides a $ase. "hese are, in %iss8 sense, a prerequisite for the judicial e#ercise of power.

 "he i stituti% al $% strai ts are5 o Judges are %t i $% tr%l %) their age da, but are $%(pelled t% $% )r% t grie!a $es or claims they would otherwise prefer to ignore, o >udges d% %t ha!e )ull $% tr%l over whom they must listen to. "hey are b%u d by rules requiring them to liste t% a br%ad ra ge %) pers% s or spo!esmen, o >udges are $%(pelled t% spea, ba$,, to resp% d to the grievance or the claim, and to assume individual responsibility for that response, o >udges must also justi)y their de$isi% s.

 oints (a, to (d, outline the terms which define judi$ial de$isi% (a,i g1 Judges are li(ited in the e'te t t% which they $a $% sider the br%ader issues raised by the dispute "hi$h they are adjudi$ati g. "hey are responding to a spe$i)i$ dispute (a,, and can % ly e gage "ith parties to that dispute (b,. erhaps most importantly (c and d, they (ust issue a "ritte a d reas% ed resp% se5 they must justi)y the decision that they have reached.

"hat mean judges should not be legislator "o assert the conventional position5 judges are %t& a d sh%uld %t be& legislat%rs5 o they $a %t ta,e i t% a$$%u t the ra ge of materials that lawma!ers can 6 they ha!e % (a date to claim a general law ma!ing power, and are %t a$$%u table in the way that lawma!ers are to the electorate. Judi$ial la" (a,i g is necessarily i terstitial a d li(ited1 ?ltimately, there is % $lear li e t% dra" bet"ee judi$ial la" (a,i g a d legislati% . At best, we can say that facing the b%u dary is a (atter %) pra$ti$e and relies % a di))ide $e % the part %) the judi$iary5 o a legal3$ultural se siti!ity to those instances when la" (a,i g is a$$eptable, and th%se "he it is %t.

 "o elaborate further 6 as @avanagh writes 6 there is no easy answer to the question ;6%" $a judges uph%ld hu(a rights& "ith%ut strayi g bey% d the li(its of their constitutional role8. "hese considerations ma!e it all the more important to approach the issue of appointment and accountability of the judiciary.

Ne" Se$ti% : 9hat is the 4judges5 ab%ut? &penness to t eir political role instead "he traditi% al pr%$ess of joining the professional elite, al% g "ith its rituals a d ide%l%gies that many belie!e pr%te$t (e(bers %) the #ar a d the Judi$iary )r%( u due i )lue $e. "he argument of this chapter h%lds that judges are p%liti$al and that it is better t% ha!e %pe ess ab%ut the p%liti$s %) their r%le than hold to some version of an apolitical rule of law.

"his will appear stra ge to some people who will pre)er a ideal %) judi$ial eutrality and may argue that judi$ial esp%usal %) a p%liti$al p%siti% g%es agai st their pr%)essi% al ethi$s1

 "raditionally judges in the ?@ were appointed from the ran!s of senior barristers. "he ba$,gr%u d %) their r%le a d p%liti$s was the $ulture %) the #ar and the .ath of office.

Judges to administer justice &arristers are .fficers of the 2ourt, and in most countries judges on appointment ta!e an oath to uph%ld the $% stituti% a d3%r supp%rt the rule %) la"1 0owever, there are numerous instances when judges ha!e supp%rted legal %r 0uasi+legal %rders t% pr%du$e $learly (to an outsider, u just pr%$esses a d de$isi% s. o for e#ample, o American judges who applied the %ugitive $lave 'aws, o =erman judges who implemented :a7i law, or
o

$outh African judges who imparted legal legitimacy to apartheid ,

2r%)essi% als charged with ad(i isteri g justi$e pr%!ided i stituti% al supp%rt passi!ely and sometimes dire$tly )%r state+ sp% s%red (and often arbitrary, degradation, repression, and brutality.

 $hould judges bear a parti$ular (%ral e'pe$tati% ? 2learly, in rule %) la" societies judges are $e tral1 2amenisch in his classical wor! on ethics and professionals in society put it as follows5
o

judges are the <bearers %) a publi$ trust, bestowed upon them in the form of a professional degree and title, and e d%"i g the( "ith a (% %p%ly in the provision of a ser!i$e which is $ru$ial t% s%$iety5.

 "heir role provides them with a power that can be used either ;)%r great s%$ietal be e)it or to considerable s%$ietal har(5, and thus <they $a rightly be a$$used of )ailure %t % ly when they use their p%"er, influence and e#pertise for the "r% g purp%ses, purposes which are positively harmful, but als% "he they )ail t% use the( )%r the pr%per purp%ses, or even fail to do so with sufficient energy and perseverance8 (2amenisch ()*+A5 )B and )C,. Judges are subje$t t% parti$ular s$ruti y because they are trained and ta,e %aths t% ad(i ister justi$e, or at least to uph%ld the $% stituti% a d the la"s, which contain principles of justice.

'eparate judiciary and politics(anger)

In one interesting study, 0ilbin! (D33C, analyses the sub(issi!e r%le that the judges in 2hile played under the Eilitary Fictatorship of =eneral inochet even though they had been trained and appointed under a democratic regime and had ta,e a %ath t% uph%ld the $% stituti% %) that regi(e, which pr%!ided a h%st %) liberal a d de(%$rati$ pr%te$ti% s1

"heir supp%rt )%r the illiberal& a tide(%$rati$& a d a ti+legal age da %) the (ilitary g%!er (e t (for e#ample, of more than B,G33 habeas corpus petitions filed by human rights lawyers between )*CA and )*+A, the courts rejected all but ten, is e'plai ed i stituti% ally. In common with some who have sought to e'plai the beha!i%ur of the judges who supported the :a7i regime, 0ilbin! first finds the ide%l%gy %) legal p%siti!is(, as ma!ing (%rality irrele!a t t% la" and thus as $% sig i g judges t% be 4sla!es %) the la"5 (this is actually a misunderstanding of positivism,.

 "his view de!el%ped i t% a 4a tip%liti$al5 conception of the judicial role amongst judges. >udges belie!ed 4la"5 a d 4p%liti$s5 were t"% e tirely disti $t and unrelated pursuits. "hey considered the g%als %) judges a d legislat%rs t% be $%(pletely separate and divergent/ thus, the less 4p%liti$al5 judges were, the (%re 4legal5 they would be.

*e conservative to inward-loo#ing judicial ran#s and unable to defend any democratic principle anymore as it is political "his understanding was stre gthe ed a d repr%du$ed by the i stituti% al stru$ture that was established in the )*D3s, when reformers sought to e d e'e$uti!e (a ipulati% %) the $%urts and pr%)essi% alise the judi$ial $areer. A formal judicial hierarchy was established and the $upre(e C%urt "as gi!e $% tr%l over o discipline o promotion within the legal profession, o controlling nominations to its own ran!s.

Although this structure successfully i $reased judi$ial i depe de $e )r%( e'e$uti!e $% tr%l, it provided i $e ti!es )%r judges t% l%%, pri(arily t% their superi%rs 6 rather than to any other audience or reference group 6 for cues on how to decide cases. >udges thus learned that to succeed professionally, the best strategy "as t% es$he" i depe de t %r i %!ati!e i terpretati% in )a!%ur %) $% ser!ati!e ruli gs

that would please the high6court justices. In this way, $% ser!atis( a d $% )%r(ity were $% ti ually repr%du$ed within the i "ard+ l%%,i g judi$ial ra ,s1

"hus a)ter the 1@AB (ilitary $%up in 2hile, e!e judges pers% ally at %dds with the laws and practices of the (ilitary regi(e were pr%)essi% ally u "illi g %r u able t% de)e d liberal de(%$rati$ pri $iples a d pra$ti$es1 o Initially they submit to the regime o "hen after $2 formed, with the in6 ward loo!ing judicial ran! they continue to be conservative o Even after military coup, they become unable to defend democratic principles

2ubli$ly $halle gi g the validity of the regime<s laws and policies in the name of liberal6democratic values and principles was viewed as u pr%)essi% al 4p%liti$al5 beha!i%ur, which threate ed the i tegrity %) the judi$iary a d the rule %) la". ?nder the watchful eye of the $upreme 2ourt, a y judge "h% aspired t% rise i the ra ,s of the judi$iary learned %t t% ta,e su$h sta ds.

W y institution and ideology so important+ 0ilbin! offers several lessons5 o %irst, )%r(al judi$ial i depe de $e, even when achieved and respected, is %t su))i$ie t to pr%du$e a judi$ial de)e $e of rights a d the rule %) la". o Indeed, i stituti% al !ariables appear to i(pa$t sig i)i$a tly on whether or not judges "ill be "illi g a d able t% assert the(sel!es i de)e $e %) rights and the rule of law. o $econd, it is important to understand not only the "ay i stituti% s $% strai the e'pressi% %) judges< pre6 e#isting attitudes but also as to h%" they $% stitute judges5 pr%)essi% al ide tities and goals. o >udicial role conceptions matter, and we need to u dersta d better h%" they are )%r(ed& (ai tai ed& %r altered. o "hird, ;ap%liti$is(5 appears t% be the "r% g ideal ar%u d

"hi$h t% $% stru$t a judi$iary i ser!i$e of liberal democracy. o Although judicial independence and professionalism are desirable for any polity committed to the rule of law, it is either p%ssible %r desirable t% $% stru$t a judi$iary bey% d p%liti$s. o 9he judges are pr%hibited by i stituti% al stru$ture and9or ide%l%gy from engaging with the wider polity, they are u li,ely t% $ulti!ate the pr%)essi% al attributes e$essary for them to defend and promote liberal6democratic constitutionalism.

0ilbin! concludes that an ;ap%liti$al5 judi$iary is thus far better suited t% auth%ritaria is( : ; than to democracy.

Ne" Se$ti% : JUDGES& ACCOUN/A#*7*/Y AND /6E RU7E O8 7A9 Judges s ould democratically accountable If, as we have argued above, judges are fundamentally political creatures, then t% "hat e'te t are they ;de(%$rati$ally a$$%u table5. recisely because the 6RA has e(p%"ered judges, it may be e$essary t% reassess the $he$,s a d bala $es that e'ist %!er the judi$iary. -ith the creation of a $upreme 2ourt, these matters are brought to a head. As the issue of the democratic accountability of judges is quite broad, we will e#amine one particular aspect of this problem5 the re)%r(s i the area %) judi$ial app%i t(e t. "o what e#tent d% they %pe judi$ial app%i t(e ts t% de(%$rati$ s$ruti y1

 -hy should this be important1 #ar% ess 6ale has argued, and most would agree, that it is a matter of principle5 o In a democratic society, in which "e are all e0ual $itiCe s, it is "r% g in principle for that auth%rity t% be "ielded by such a very u represe tati!e se$ti% of the population.

,ssential for representative judiciary is neutral adjudication but not diversity in democratic accountable "hat the $%(p%siti% %) the judi$iary should re)le$t that %) s%$iety is a $lai( ab%ut the $%(p%siti% , rather than the function of the body. "he argument for a representative judiciary is founded on the assertion that i stituti% s sh%uld re)le$t the ature %) the s%$iety in which they are embedded. "his can be justified by principles of democratic pluralism, or equality of opportunity. Argu(e ts )%r a represe tati!e judi$iary are %t the sa(e as arguments for a represe tati!e legislature. arliament is ele$ted % a br%ad de(%$rati$ )ra $hise. Its function is to represe t the i terests %) the ele$t%rate as a "h%le1

 -hilst judges should be more representative of the society from which they are drawn, but their pred%(i a t )u $ti% is that %) eutral adjudi$ati% 1 o $o di!ersity %) judi$iary is %t the (ai issue as J did %t sa(e as represe tati!e %) legislature which give equal opportunity to everyone Indeed, the first report of the Sele$t C%((ittee % C% stituti% al A))airs stressed that re)%r(s i judi$ial app%i t(e ts should be dri!e by a %ti% %) 4de(%$rati$ a$$%u tability5 o that sought to a$hie!e a bala $e between the need to se$ure the tra spare $y of the app%i t(e ts pr%$edure, and the re0uire(e t %) judi$ial i depe de $e within both the domestic and European conte#ts of the &ritish state. It was becoming i $reasi gly $lear that the %ld syste( was la$,i g i de(%$rati$ $redibility

o [e#tra] "he g%!er (e t "as als% ,ee t% pr%(%te a di!ersity agenda 6 but within the conte#t of $%st a d e))i$ie $y. "here were some arguments that the creation of a >udicial Appointments 2ommittee would si(ply be t%% e'pe si!e/ or would ta,e up t%% large a part %) a budget that had to be shared between the 2ourt $ervice and the provision of legal aid.

Indeed, there "ere (isgi!i gs ab%ut the ti(e s$ale in which reforms could be wor!ed out and then implemented. "he reason for haste was seen as 4pri(arily p%liti$al5 6 although it is hard to understand this point.

Argument *s this a $riti$is( %) the party p%liti$al age da that lay behi d the re)%r(s, or an a$, %"ledge(e t that re)%r(s are e$essary t% (a,e #ritish i stituti% s hu(a rights $%(plia t1

-rior to .//0 1ct! un-transparent and un-accountable judiciary appointment rior to the D33B Act, the 7%rd Cha $ell%r5s 4p%"er5 t% app%i t judges meant that the process was se$reti!e and headed by a person who held political office. o Appointments to higher judi$ial p%siti% s, to the 2ourt of Appeal, the appellate 2ommittee of the 0ouse of 'ords and to offices of 'ord 2hief >ustice and resident of the %amily Fivision were made by the Hueen, % the ad!i$e %) the 2ri(e Mi ister a)ter $% sultati% "ith the 7%rd Cha $ell%r, who had himself consulted with senior members of the judiciary. o 0igh court judges, circuit judges, recorders and stipendiary and lay magistrates were app%i ted by the Duee % the ad!i$e %) the 7%rd Cha $ell%r1 "he p%%l %) p%ssible app%i t(e ts "as s(all and almost entirely co(p%sed %) se i%r barristers, or, in the case of most app%i t(e ts t% the %))i$e %) 6igh C%urt judge, th%se "h% "ere $urre tly pra$tisi g as re$%rders.

 It became i $reasi gly di))i$ult t% justi)y this unaccountable and un6 transparent system of 4se$ret s%u di gs51 %urthermore, the blurri g %) judi$ial a d e'e$uti!e )u $ti% s in the office of 7%rd Cha $ell%r appeared to be in brea$h %) de(%$rati$ pri $iples1 "he 0uman Iights Act )**+ sig alled the re)%r( %) the syste(. roposals focused on the need for a judicial appointments body that would bri g t% a e d %bs$ure (eth%ds %) app%i t(e t and li(it the p%"er %) the 7%rd Cha $ell%r1

1 new body (only recommendation) to appoint w ic remain transparency and accountable to -arliament "he government8s preference for a recommending body was ultimately successful, and suggests that the major ways in which tra spare $y "ill be (ai tai ed is thr%ugh the traditional constitutional mechanism of a$$%u tability t% 2arlia(e t. "he body 6 have the ministerial input to have parliament accountable and have independency "he different forms that the body might ta!e reflect different understandings of where the balance of power should lie between Einisters, lay members, the legal profession and judges themselves. An App%i ti g C%((ittee, at least in the form presented in the government8s consultation paper, "%uld ta,e %!er the app%i t(e t p%"ers %) the 7%rd Cha $ell%r a d the 2ri(e Mi ister1 ower to app%i t judges "%uld e))e$ti!ely be re(%!ed )r%( the ha ds %) (i isters.

 "his would have the !irtue %) i depe de $e from the political process, but it "%uld als% be e$essary t% (a,e sure that the C%((issi% "as %t biased with views from the profession or other sources. Although there are regulat%ry b%dies that ha!e % (i isterial prese $e and this model re(%!es "hate!er p%liti$al i )lue $e a Einister might bring to bear on judicial appointments, but it raises a seri%us $% stituti% al issue. "he re(%!al %) Mi isterial i put also $%(pr%(ises the ele(e t %) 2arlia(e tary s$ruti y, because a Mi ister is resp% sible t% 2arlia(e t1 A recommending 2ommission reflects a different understanding of the balance of power. "his model retains the i !%l!e(e t %) Mi isters, and he $e the ele(e t %) resp% sibility t% 2arlia(e t. "he C%((issi% itsel) (a,es the re$%((e dati% , and the Mi ister reje$ts %r a$$epts the re$%((e dati% .

 "he model requires a pre$ise de(ar$ati% %) resp% sibilities bet"ee C%((issi% a d Mi ister to be wor!ed out 6 as %ther"ise a Mi ister (ight )i d hi( %r hersel) in the position of responsibility for appointments in which he or she had little %r % i put. A hybrid 2ommission represents a variation on this theme5 the p%"er t% (a,e ju i%r app%i t(e ts "%uld rest "ith a App%i ti g C%((issi% , but appointing to se i%r p%siti% s "%uld re0uire Mi isterial i put. A hybrid 2ommission would all%" Mi isterial resp% sibility t% 2arlia(e t, while also creating an i depe de t b%dy1

Feficit in &ritish politics6 minister may not fully accountable -hile this stresses the element of political accountability in appointments, but it d%es beg the 0uesti% %) the ter(s %) this $% stituti% al $% !e ti% . "here is an argument that sh%uld a su))i$ie tly str% g g%!er (e t $h%%se t% supp%rt a (i ister5s de$isi% , then he %r she "%uld be u li,ely t% resig . Su$h $riti$is(s %) 2arlia(e t5s "ea, ess in the face of the res%l!e %) g%!er (e tal p%"er suggest wider concerns about the ;de(%$rati$ de)i$it5 i #ritish p%liti$s. -e could suggest that the "ea, esses %) the prese t re)%r(s to a$hie!e a tra spare t and de(%$rati$ syste( of appointments are i separable )r%( "ider $% $er s ab%ut the u restrai ed p%"er %) the e'e$uti!e 6 and the ongoing need for general constitutional reform. o $o, for fully transparency and democratic judiciary appointment system then there should have constitutional reform for e#ecutive

2R1 principles 0ow does the 2onstitutional Ieform Act structure the operation of a recommending commission1 "he Act begins by re+a))ir(i g the i depe de $e %) the judi$iary. "his is the first time in &ritish history that a state(e t %) this !alue has ta,e a statut%ry )%r(1 o =ive the absence of a fundamental document that describes the relationship between the e#ecutive, the legislature and the judiciary, this particular statement of judicial independence reflects the need to define a constitutional settlement without committing to a written constitution. o It thus needs to be read in the conte#t of ;constitutional8 statutes such as the 0uman Iights Act )**+ and the European 2ommunities Act )*CD that are seen as structural to the legal form of the &ritish state.

 "he other point that needs to be borne in mind is the sense in which the C% stituti% al Re)%r( A$t is dri!e by the p%liti$al eed to e sure that #ritish i stituti% s are $%(plia t "ith the EC6R

2R1- 3ord 2 ancellors role- still ave influences "he 2onstitutional Ieform Act ma!es a number of changes to the office of the 'ord 2hancellor 6 but 6 most importantly for our purposes, we need to realise that the 7%rd Cha $ell%r retai s a i(p%rta t set %) p%"ers t% a))e$t a d i )lue $e the appointment of judges. Although these powers are offset by those of the Appointments 2ommittee, it "%uld be "r% g t% see the e" syste( as bri gi g t% a abrupt e d the i )lue $e %) the e'e$uti!e in the appointment of judges. $ection B=1> of the D33B Act thus pla$es a duty % the 7%rd Cha $ell%r a d %ther Mi isters with responsibility for the ;administration of justice8 t% 4uph%ld5 the 4i depe de $e %) the judi$iary51

'ome 2R1 provision 4not so important5 "he general duty at s.A(), is elaborated in a number of more specific responsibilities. $ection A(B, pr%hibits the 7%rd Cha $ell%r a d %ther Mi isters from i )lue $i g judi$ial de$isi% s ;thr%ugh any special access to the judiciary8. o It is hard to !now precisely what this notion of ;special access8 covers. o "he notes for guidance put it in the following way5 ;special access8 is intended to refer to any access over and above that which might be e#ercised by a member of the general public8. o It is hard t% belie!e that Mi isters "ill be pre!e ted by the A$t from influencing decisions through subtle forms of political pressure. o It is also di))i$ult t% see h%" a (e(ber %) the ge eral publi$ (ay be able t% 0uesti% a y parti$ular de$isi% s1

 Fespite these criticisms, s.A(), has the virtue of a clear statement of the br%ader $% stituti% al pri $iple %) the di!isi% %) p%"er1 Einisters must leave the judiciary to their own sphere of competence. 'i!ewise, judges must not trespass on e#ecutive or legislative functions. o =iven the cult of secrecy in much of central government, and our general ignorance of how judges ma!e decisions, it is hard t% , %" "hether %r %t the bra $hes %) the state ,eep t% their respe$ti!e )ields %) $%(pete $e. "he 'ord Cha $ell%r is gi!e spe$i)i$ duties t% e sure the de)e $e %) judi$ial i depe de $e and the reflection of the ;publi$ i terest5 in matters relating to judges and the administration of justice.

2R1- appointment of judiciary "he main structural provisions are provided for by s.4) of the Act, which sets up the >udicial Appointments 2ommission. "he Act goes on to specify that app%i t(e ts must be s%lely % (erit and the 2ommission must be certain that the app%i tee is %) 4g%%d $hara$ter51 "here is also a statutory duty to ensure that app%i t(e ts are (ade i su$h a "ay as t% a$hie!e di!ersity in the composition of the judiciary 6 although such a duty is subje$t t% the re0uire(e ts %) the se$ti% s des$ribed ab%!e1

2R1- appointment involve 2ommission! 32! 3ord 2 ief Justice "he 7%rd Cha $ell%r retai s a ad!is%ry r%le with respect to both pr%$edure a d the sele$ti% of candidates 6 and the C%((issi% is u der a duty t% ta,e i t% a$$%u t the ad!i$e that may be given. 0owever, given the importance of this guidance for the operation of the 2ommission, the Act does specify that the 7%rd Cha $ell%r (ust $% sult "ith the 7%rd Chie) Justi$e and bri g the ad!i$e t% the atte ti% %) the C%((% s for its approval. -e could see this (e$ha is( as the "ay i "hi$h the syste( %) 4se$ret s%u di gs5 is %pe ed t% the de(%$rati$ pr%$ess1

Fetails5 "he appointment powers of the 2ommission are also defined by the Act. "he Act effectively divides judicial appointments in ter(s %) the hierar$hy %) se i%rity1 As far as appointments to se i%r p%siti% s are concerned, the 7%rd Cha $ell%r (ust )irst re0uest the C%((issi% to select a person if a !a$a $y arises in one of these offices. .nce the selection has been made, the C%((issi% (ust sub(it a rep%rt t% the 7%rd Cha $ell%r.

 -hen he is in receipt of the report, the 7%rd Cha $ell%r (ay a$$ept %r reje$t the selection/ he also has the power to re0uire the C%((issi% t% re$% sider its choice of person. "he procedure laid down by the Act is rather complicated, but the 7%rd Cha $ell%r $a re)use a sele$ti% % the basis that the person is %t suitable or that the person is %t the best $a didate % (erit1 "he Act requires the 'ord 2hancellor to put his decision in writing.

2R1 on Judicial 1ppointment 2ommission 4J125-judicial! legal profession and layman "he >udicial Appointments 2ommission [>A2] $% sists %) a $hair(a a d 1- %ther (e(bers who are app%i ted by the Duee on the re$%((e dati% %) the 7%rd Cha $ell%r. "he composition of the 2ommission is crucial as it must a$hie!e a bala $e bet"ee th%se "h% represe t the legal pr%)essi% , and those who are drawn )r%( a % +legal ba$,gr%u d. As the $elect 2ommittee report argued, there was a )ear that i) judi$ial (e(bers %) the C%((issi% pred%(i ated, they "%uld re$ruit 4i their %" i(age5. o Indeed, it was pointed out that the App%i t(e ts C%((issi% i S$%tla d was $% sidered su$$ess)ul despite the fact that judges a d la"yers "ere i the (i %rity1 o "he structure of the Act reflects a partial triumph of this position.

 "he $hair(a has t% be a 4lay (e(ber5 rather than a judge. .f the other 2ommissioners, )i!e (ust be judi$ial1 o "he )i!e judi$ial (e(bers (ust re)le$t a $r%ss se$ti% %) judi$ial ra ,s& from 'ord >ustice of Appeal to district judge. /"% (e(bers (ust be pr%)essi% al& represe ti g the bar a d the s%li$it%rs5 branch of the profession. "he )i!e lay (e(bers are defined as those who are %t pra$tisi g la"yers, and ha!e %t held judi$ial %))i$e1

2R1- (isciplinary power "he Act also sets up a Judi$ial App%i t(e ts a d C% du$t O(buds(a s.4D(),. It also creates a set of disciplinary procedures. &ased on s.)3+, these all%" the 7%rd Cha $ell%r t% re(%!e h%lders %) judi$ial %))i$e and sit al% gside the p%"ers %) the 7%rd Chie) Justi$e that are also subje$t t% statuary pr%$edures1

"he 'ord 2hief >ustice, with the agreement of the 'ord 2hancellor, (ay )%r(ally repri(a d& %r suspe d from office a judicial officer holder who is, amongst other concerns, subje$t t% $ri(i al pr%$eedi gs %r $% !i$ted i $ri(i al pr%$eedi gs1 "he objective of this disciplinary code is to preser!e publi$ $% )ide $e in the judiciary.

 "hese dis$ipli ary p%"ers themselves sit "ithi a syste( %) $he$,s a d bala $es. $ection ))3 e(p%"ers the O(buds(a to re!ie" dis$ipli ary $ases i $ertai $ir$u(sta $es, but, it is worth remembering that this is a re!ie" %) pr%$edure, rather than the substance of the claim made against the judicial office holder. ?nder s.))), the .mbudsman has the p%"er t% set aside a de$isi% , and to order that the matter be reconsidered

2riticism at J12 2riticisms have been made of the composition of the >A2. "he 'aw $ociety has argued that the g%!er (e t still has t%% (u$h $% tr%l, as it appoints the 2ommission8s staff, EF per $e t %) "hi$h are se$% ded )r%( the Mi istry %) Justi$e1 "hey have also argued that the members of the 2ommission are ;sele$ted pri(arily by the 7%rd Cha $ell%r a d the 7%rd Chie) Justi$e5/ the latter retai i g a great deal %) $% tr%l over final appointments. -ithin the 2ommission, there are )ears that the !ie" %) the judi$iary pred%(i ate5 o five of the )B >A2 members must be judges, while at prese t three %thers happe t% be $urre t %r )%r(er judges.

 Judi$ial i )lue $e is also cemented by the pra$ti$e %) %btai i g re)ere $es be)%re i ter!ie" 6 as this operates as a !ind of filter. "he JAC is als% sl%"ed d%" by $u(bers%(e bureau$ra$y (e#cessive or complicated official routine, 6 a vice that the old system did not suffer from (at least in the opinions of some judges,.

(iverse group appointment issue -ill the >A2 create a more diverse judiciary1 In >anuary D33+, with the appointment of the )irst te high $%urt judges, many people began to thin! otherwise. .f a group of F1 $a didates who have been approved, the )irst te to obtain appointments ;are "hite (ale )%r(er barristers and si# of the nine edu$ated i #ritai went to leading i depe de t s$h%%ls5. "he gr%up %) appr%!ed $a didates $% sists %) three "%(e , % e of whom are eth i$ (i %rity app%i t(e ts1 "he 2ommons Inquiry into >udicial Appointments found that although some progress had been made at lower judicial levels, but there "as a 4glass $eili g5 =barrier> at re$%rder le!el. As the p%siti% %) re$%rder "as the 4bridge5 t% (%re se i%r app%i t(e ts, it would appear that whilst the l%"er $%urts a d tribu als are be$%(i g (%re di!erse, the higher $%urts re(ai the preser!e %) "hite (ales1

2ommentary "o some e#tent it is u )air t% $riti$ise the >A2 for this problem as the last t"% r%u ds %) app%i t(e ts t% Re$%rder "ere (ade by the Mi istry %) Justi$e1 2omplaints were also (ade %!er the ad!ertise(e ts )%r spe$ialist $ir$uit judges that appeared to e'$lude appli$ati% s )r%( distri$t judges1 -hilst there is a degree %) di!ersity a(% gst distri$t judges& but there is !ery little a(% gst $ir$uit judges1 "his would also suggest that there is a %ther )ailure t% push thr%ugh a $%here t age da.

 Eore recent figures on judicial diversity remain discouraging5 o . . . only -G %) %ur judges are )r%( eth i$ (i %rities (who ma!e up about +J of the population, compared with the US5s 1HG (where they ma!e up about DBJ,. o o "here are % ly three se i%r judges, and % la" l%rds, )r%( (i %rity ba$,gr%u ds in this country. o A y praise )%r the UI5s $%((it(e t t% di!ersity in the judiciary 6 of which much is said but little e!ide $e can yet be seen 6 must be placed in this conte#t. Afua 0irsch, The Guardian

%emale judges issue As of Fecember D3)), 7ady Justi$e 6ale is the % ly % e %) the te Justi$es of the $upreme 2ourt who is )e(ale. Fata published by the >A2 on selection e#ercises completed since ) April D33+ shows that5 ;)i!e %) the FF 0igh 2ourt judges recommended for appointment by the >A2 this year are "%(e , which will raise the number of "%(e 6igh C%urt judges t% 1A& the highest number ever.8

 C%(parati!e data shows just h%" p%%r these figures are. A recent report published by the C%u $il %) Eur%pe dre" atte ti% to the increasing ;)e(i isati% %) the judi$iary5 a$r%ss Eur%pe, so that one could spea! of ;near gender equality8. In D3)D, only FB per $e t %) judges i E gla d a d 9ales, and D) per cent in $cotland, were "%(e . It is clear that the #ritish judi$iary are perhaps the least di!erse i Eur%pe (indeed the 2oE report shows that only A7erbaijan and Armenia have fewer female judges,.

-roblems of less diversity Appointing issue In Eay D3)) the 6%use %) 7%rds C% stituti% C%((ittee bega its i 0uiry i t% judi$ial app%i t(e ts. "he fundamental problem is that, despite the operation of the >A2, the patter %) app%i t(e ts d%es %t see( t% ha!e $ha ged, and, as far as the public is concerned, the pr%$ess appears di))i$ult t% s$ruti ise. %urthermore, the pressing question is5 t% "hat e'te t ha!e the rele!a t se$ti% s of the 2onstitutional Ieform Act been ;$lari)ied5 by the E0uality A$t F.1.1 $ection )B* of the Act $% tai s a 4tie brea,5 pr%!isi% & that all%"s the sele$ti g b%dy t% $h%%se the $a didate )r%( 4the u derreprese ted gr%up5.

7%rd 2a i$,, in particular, e'pressed his d%ubts %!er the e))e$ti!e ess of these provisions.

romoting issue If the official position is that the syste( pr%(%tes by (erit, and given time, those )e(ale a d % + "hite $a didates "ith (erit "ill be app%i ted& then there will always be a ;"ait a d see5 argu(e t. 0owever, there are significant problems with this gradualist approach5 o .nce enough women, members of ethnic and religious minorities, gays, and other non6standard issue have been at &ar for long enough, they are b%u d t% $%(e thr%ugh t% the higher p%siti% s. o Eost serious outside observers !now that o it is not so simple. . . . /here are als% syste(i$ %bsta$les t% (a,i g su))i$ie t pr%gress t% be regarded as a seri%us $a didate1 0ale It is %t si(ply a 0uesti% %) belie!i g that the (%st able $a didates "ill $%(e t% the t%p1

It would appear that despite the reforms and protestations to the contrary, a tightly , it s%$ial gr%up still re$ruits i its %" i(age. o "his has been commented on by Mrs Justi$e D%bbs& one of the ten female 0igh 2ourt judges, and the only % e )r%( a eth i$ (i %rity1

$he cites 'ady >ustice Arden on the5 o %table la$, %) pr%gress )%r "%(e at a time when there is considerable pressure for diversity in the profession and on the bench.

It would seem that, at least for now, the %ld %rder re(ai s i $% tr%l %) app%i t(e ts t% the judi$iary1

(iversity and 6uality of Judgment .f late, a sophisticated set of arguments have emerged that show h%" 4the 0uality5 %) judi$ial de$isi% ma!ing can be i(pr%!ed by br%ade i g the p%%l %) 4tale t5 a!ailable for promotion to judicial office.

In particular 'ord >ustice Etherton8s arguments, bac!ed up by those of Eoran and Iac!ley, ha!e re)uted Ge 5s resear$h argu(e t that there is little %r % e!ide $e to suggest that )e(ale judges& %r th%se )r%( eth i$ (i %rity ba$,gr%u ds& "ill (a,e a sig i)i$a t di))ere $e to judicial decision ma!ing. "hese arguments address the se se in which judges $a e gage "ith di))ere t e'perie $es i a (ea i g)ul "ay 6 and avoid the stridency of >ustice $otomayer8s assertion that ;a wise 'atina woman with the richness of her e#periences would more often than not reach a better conclusion than a white man8 (0orne (D3)35 AD, citing Ealleson AA,.

 -hat conclusions can we draw from these arguments1 =iven that there is little or no enthusiasm for judicial confirmation hearings and arguments for positive discrimination are not being seriously mooted, the "ay )%r"ard (ay be t% e'a(i e agai the stru$tures %) the pr%)essi% itsel). If we are forced to a$$ept a 4"ait a d see5 argu(e t, h%" is it p%ssible t% %pe up the pr%)essi% s t% th%se "h% "%uld %ther"ise su))er syste(i$ %bsta$les t% pr%(%ti% to high office1

E#planation of >udicial 2onfirmation 0earing o 2onfirmation hearings would pr%!ide a %pp%rtu ity t% e'a(i e a i di!idual $a didate5s p%liti$s be)%re they "ere i !ited t% ta,e judi$ial %))i$e. o 0owever, pr%p%sals )%r $% )ir(ati% heari gs ha!e %t )%u d a$$epta $e in &ritish politics. o "he 2ommons 2ommittee that considered the issue did not accept that confirmation hearings "%uld 4e sure $% )ide $e i the judi$iary51 o Eoreover, they would be i $% siste t "ith the %bje$ti!e %) ta,i g the Supre(e C%urt %ut %) the p%liti$al are a1 (D*,

o "he Einistry of >ustice8s =reen aper on "he =overnance of &ritain also considered a more enhanced role for arliament in judicial appointments. o Although the government reje$ted b%th $% )ir(ati% heari gs a d 2arlia(e tary i put i app%i t(e ts, there was a proposal that a ;meeting of the 2ommons >ustice 2ommittee and the 'ords 2onstitution 2ommittee8 $%uld 4h%ld the syste( t% a$$%u t % a a ual basis5. (A3,.

CONC7US*ON -ithin a democratic constitution judi$ial la" (a,i g is legiti(ate to the e#tent that it is sub%rdi ate t% a i stituti% that has s%(ethi g li,e a ge eral ele$t%ral (a date )%r its supre(a$y1 0owever, simply asserting the de(%$rati$ (a date %) 2arlia(e t is % l% ger a $% !i $i g justi)i$ati% for its sovereignty. "he de)e $e %) hu(a rights and the rule %) la" is also a legiti(ate tas, )%r a judge 6 even if this creates a tension between the courts and arliament. >udicial law ma!ing re0uires us t% re!isit the pr%ble(ati$ issue %) judi$ial app%i t(e ts. -e have argued that the debate has rea$hed s%(ethi g %) a i(passe / and that the $reati% %) a di!erse p%%l %) tale t )%r high %))i$e re0uires a (u$h br%ader $% siderati% of the structures of the profession that still appears t% re$ruit a d pr%(%te i its %" i(age1

Di))ere t Se$ti% : 2OS/CR*2/: /6E 2O7*/*CS O8 /6E NE9 7EGA7 O88*C*A7S *N A G7O#A7*SED 7EGA7 ORDER Judges is not only t e figure in lawoperation In this chapter we have been concerned with conceptions of the judging within a national conte#t. $ome would consider this t%% arr%"ly )%$ussed1 9e (ay als% be %pe t% the $harge that we are assuming that judges matter, and that the adjudicative system in which they appear as the ape# is a vital place for the resolution of disputes. %rom one side the critique would be that within the (%der $%((% la" ati% +state, as represented by the ?@, the ?$, 2anada (and increasingly other countries such as :ew Kealand, Australia and $ingapore,, judges are %t& apart )r%( i te'tb%%,s& the )igures i $harge %) the la"+i +%perati% 1

 Other %))i$ials and controllers of access are )ar (%re i(p%rta t tha judges. It is also undeniable that in large part legal spe$ialists are (%!i g )r%( the litigati% (%del t% a dispute+(a age(e t (%del, organised so as to settle disputes )ar )r%( the $%urts1 o "he dispute resolution function has shifted elsewhere i $ludi g 4i t% the la" )ir(s the(sel!es51 o ;If lawyers once followed judges and clustered around courts, %" i $reasi gly la"yers )%ll%" the $lie t15 Eurphy

=lobalisation law ma!ing "hese lawyers or service providers are located in a vast diversity of firms, but "ith $% siderable p%"er a d prestige i large gr%upi gs/ the i ter ati% al la" )ir(. "he international law firm i $reasi gly %perates i a gl%balised legal "%rld that seems ab%!e de(%$rati$ a$$%u tability. =lobalisation re ders pr%ble(ati$ the b%u d+area of the ati% +state. "he i(p%rta t s%ur$es %) la"(a,i g are international agencies li!e the 9%rld #a ,, the *M8 and the 9/O. %urthermore, $%((er$ial rules, li!e the le# mercatoria, are ge erated by a$t%rs %t a$$%u table t% ati% states. -e have returned to the ways in which legal actors such as 'ord Eansfield fashioned the commercial elements of common law from the customs and understandings of economic actors.

 &ut who holds 'ord Eansfield8s contemporary equivalents accountable1 -hose ethics, rights, and claims to process hold sway 1 "o what legal order, t% "hat syste( %) s$ruti y d% the e" legal %))i$ials bel% g1 .ther e#amples are the legal& p%liti$al& a d e$% %(i$ re)%r(s r%uti ely )%r$ed up% $%u tries see,i g e$% %(i$ aid )r%( i ter ati% al le ders and relief agencies. Eore e#amples e#ist, varying in degree as to their 4!%lu tary5 ature/ consider the legal re)%r(s e$essary )%r (e(bership i the GA// %) the Eur%pea U i% , or the ad%pti% %) $hild a d s"eatsh%p lab%ur regulati% s to satis)y $% su(er gr%ups )r%( abr%ad1 o [As country want to lend ;resources8] "he norms and ethics of those resp% sible )%r i(ple(e tati% (ay %r (ay %t be res% a t "ith th%se %) l%$al %))i$ials1

=lobalisation affect the domestic culture -hatever the impact on democratic accountability, globalisation is already a))e$ti g the $ulture a d ethi$s %) judges i ati% al $% te't1 As $laughter put it5 o Judges are buildi g a gl%bal $%((u ity of law. o /hey share !alues a d i terests based upon their belief in law as distinct but %t di!%r$ed )r%( p%liti$s and their !ie" of themselves as professionals who (ust be i sulated )r%( dire$t p%liti$al influence . . . o Nati% al a d i ter ati% al judges are et"%r,i g, becoming increasingly a"are %) % e a %ther and of their sta!e in a common enterprise. o "he (%st i )%r(al le!el %) tra s ati% al judi$ial $% ta$t is , %"ledge %) )%reig a d i ter ati% al judi$ial de$isi% s a d a $%rresp% di g "illi g ess t% $ite the(.

"ransnational legal culture6 reality and problems "he (%!e(e t %) stude ts )r%( % e jurisdi$ti% t% a %ther, for ''E studies in particular, offers one piece of the picture of an e(ergi g legal $ulture that (ight all%" the de!el%p(e t a d s%lidi)i$ati% %) a tra s ati% al legal $ulture. 0owever, the e(erge $e %) a tra s ati% al& gl%bal pra$ti$e is )ar )r%( $ertai . 9hat ideal& or set of understandings, $%uld guide this e" reality? 2erhaps we can see an e(ergi g gl%bal $%de %) legality (undoubtedly with human rights central to it,, but "h% is t% judge the judges, where will accountability lie1

roblem faced by follow ;'ast >udgment8 same as problem faced by transnational legal system issue

"he chapter began with an epigram from &racton, an appeal to the judges to remember that they "%uld be held a$$%u table i a day %) )i al judg(e t.

"im Eurphy e#plains that the common law has a particular claim to be ;the %ldest s%$ial s$ie $e5 dati g )r%( its early days "he judges "ere a )eature %) the =R%yal> $%urt and the $%urt pra$tised 4adjudi$ati!e g%!er (e t5. Fecisions were made in accordance with a way of loo!ing at things, in accordance with the manner in which things loo!ed if you sat behind a bench 6 or a table 6 and listened to an argument before giving judgment. ;In .ccidental culture, such a tableau unfolded, of course, at the very end of time itself, in the 7ast Judg(e t18 "his was not a version of natural law where % e "as (ea t t% )%ll%" G%d5s "ill for a ;greater "eight is $arried by the i(age %) G%d as judge than by that of =od as 'awgiver. "he 'aws, as given, are given8.

 "he image of =od as judge is not mechanical jurisprudence, it is %t a (atter %) applyi g "hat is laid d%" i s%(e si(ple all%$ati% %) )a$ts t% $lear la"5 once we put an emphasis on the seat of judgment the central question becomes h%" the ,i g %) hea!e %r his rege t % earth sh%uld judge1 "his in the end means5 ;h%" t% "eigh i the bala $e g%%d a d e!il, or how to determine what is good and what is evil. "his is the $hara$ter %) the 0uesti% %) truth, which is %t really i(agi able %utside the setti g %) p%"er a d judg(e t.8 Let if "e are t% $% $ei!e %) a p%liti$s %) judgi g tra s ati% ally 6 given that we are in an era where it is clear that forces pre!e t , %"ledge %) gl%bal i ter$% e$ted ess, and ;realisti$5 %ti% s seem a!in to announcing that one is too e#hausted to care for more than a sympathetic moment 6 it "ill eed great p%"ers %) judg(e t t% li , la"& de(%$ra$y a d truth1