Impartiality of the Judiciary Analysed

‘Judges are impartial decision-makers in the pursuit of justice’. To what extent is this claim plausible?

Under the UK constitutional law, the principle of judicial independence derives from the theory of separation of powers, whereby the Executive, Legislature, and Judiciary form the three separate branches of the government. The Judiciary plays an important role in adjudicating disputes according to the existence law; the judges are the main element to interpret and uphold the law. Thus, the impartiality of the judges is crucial in practising the theory of separation of powers. Based on the rule of law itself, it is important in protecting human rights and the fundamental freedoms of the individuals.[1] Furthermore, the impartiality of the judiciary is a fundamental right in the context of effectiveness of a justice system. However, to what extent are judges personally and substantively independent in a diverse state like the UK? This essay will discuss the factors that might influence the impartiality of judges in making decisions. The factors will be discussed include the personal elements, political influence, judicial diversity and the impact of Judicial Appointments Commission (JAC) and Constitutional Reform Act 2005.

Generally, the fundamental right of the impartiality of the judiciary enshrined in the Article 10 of Universal Declaration of Human Rights and was confirmed in the Article 14 of the International Covenant on Civil and Political Rights (ICCPR). Furthermore, the Human Rights Act 1998 (HRA) re-emphasized the importance of the independence and impartiality of the judiciary following the requirement of Article 6 of European Convention on Human Rights (ECHR), right to a fair hearing.

Personal elements are recognized to be one of the contributing factors in judicial law-making.[2] Debates among the academicians have identified several components including demographics, judicial activism, morality, personal values and political ideology of judges individually.[3] Lord Radcliffe[4] argues that the judges work in a mechanical system. In interpreting the law, it is neither to be on their command of reasoning nor their knowledge. It does matter on what personal quality do the judges bring to their responsibility, but in the end, his structure of thought and belief, and his experience of life are yet to have built upon their judgement. Proven by Lord Dyson, he acknowledges that the “approach of life” and “philosophy” may play a significant role in his decision making[5]. Lady Hale in giving evidence before the constitutional committee in 2011 noted that “everybody comes to the task with a set of values and perspectives that may lead you to pick different bits of the materials to reason towards an outcome.”[6] Consequently, judges need to uphold the core principle of the judicial independence respectively despite of different personal elements that applied in making a decision.

Logically, it is always assumed that for a fair and impartial trial or hearing, the judges must be free from the pressure and interference from any other source. other than the degree of internal pressure of judges’ personal beliefs and motivations. The sources may include pressure from other judges, the Executive or the public itself, other than the degree of internal pressure of judges’ personal beliefs and motivations.[7] In Pinochet[8] case, the defendant who was on a trip to the UK, had an arrest warrant issued by a Spanish judge for crimes against humanity. It was decided by the House of Lords through a wide reading of the Extradition Act 1989, the sovereign immunity was not to be given. It was felt that the severity of the crimes was enough for human rights to take superiority over English law. The impartiality of Lord Hoffman’s decision, one of the Law Lords sitting on the case was questioned. This is because his involvement with a human rights organisation, Amnesty International and his wife was a full-time employed in the organisation. It is reasonable to say that there was a real public interest in the judiciary by that time. The need for judges to be independent and impartial is important to ensure public confidence towards the judiciary and the decisions are made in an unbiased way and fair based on the law and evidence presented.

In Locabail (UK) Ltd v Bayfield Properties Ltd[9], the court delivered authoritative guidance on the matter that through a remote financial connection or social interest the judge was potentially biased. Bias within the judiciary is a personal element that may lead to the judicial decision-making. According to Griffith[10], bias can occur at two levels which are personal bias and corporate bias. Personal bias occurs where individual judges let their own personal prejudices to influence their judgement and thus, the effective application of the law. On the other hand, corporate bias involves the assertion that judges as a body decide certain type of cases in a biased way. Corporate bias is much more serious than personal bias. In ensuring the impartiality of the judges, a judge shall disqualify himself or herself from participating in any proceedings where the judge has actual bias or prejudice concerning a party or personal knowledge of disputed evidentiary facts concerning the proceedings.[11]

Law is an inherently and inescapably political process. In making legal decisions, judges decide where the weight of public approval is to be replaced and which forms of behaviour are to be sanctioned. There is an increasingly tendency for contemporary judges to become directly, openly and actively engaged in more overtly political activity. Kilmuir rules which introduced in 1955 were designated to control instances when the judiciary could express opinion in the media. However, the rules are repealed in 1987 by Lord Mackay, since then, the judiciary have been more open in expressing their views which is not restricted on their judicial functions but also on wider political matters. Griffith[12] argues that the value and the threat, the strength and the weakness of the judges are placed on the law and the conception of the public interest which they owe their faithfulness.

In the context on the political aspect, it is the responsibility of the judges themselves to ensure the independence and the impartiality in the pursuit of justice. The development of the Bangalore Principles of Judges that were tentatively developed in 2000 are now increasingly be a reference document which accepted by all legal systems and judiciaries.[13] The principles described the professional and ethical code of conduct for judges. And more practical outline of what independence and impartiality mean. The six values described are impartiality, integrity, independence, equality, diligence, competence and propriety. The Guide to Judicial Conduct[14] written in light of the principles mentioned clarify that involvement of the judges in any kind of political activities including political fundraising events and political discussion. Moreover, the need of self-control also involves not joining in any public demonstrations. This may cause the judge to be associated with political viewpoints may diminish their authority as a judge and may lead to a perception of bias. Where a close family member of a judge is actively involved in politics, the judge needs to bear in mind that in some proceedings, the political matter might arise and this may affect the judge’s own impartiality and objectivity from the political process. Thus, the judges themselves play an essential role to preserve their impartiality as a decision-maker with the influence of the political element that is inescapable to law.

In the process of applying the law by the judiciary, criticism is usually pointed at particular race, gender and class position of the judges. Lord Sumption argues that the lack of diversity is a significant problem in the judiciary and the change in the status and achievements of women in the society generally is a vast cultural change that happened over the last 50 years which also enormously happened in the legal system.[15] The definition of diversity should be more refined and clearly distinguishes between the ability of women and ethnic minorities to achieve judicial appointment. The ability of different ethnic groups to achieve judicial appointment should also be distinguished as judicial diversity is vital in the pursuit of justice in a diverse society like the UK. Acknowledging the judicial background in England and Wales, the lack of judicial diversity may also extend to social background of the judges. In 2005, it was reported that in the senior judiciary (High Court and above), 81% were Oxbridge graduates, 76% attended fee-paying schools, and 50% went to boarding schools.[16]

Judicial diversity is important in increasing public confidence in the impartiality of the judiciary and in the quality improvisation of judicial decision-making. In the United States, extensive study on the actual effect of a diverse judiciary on judicial decision-making. The studies by the collegiate appellate courts indicated that the panel of judges from diverse backgrounds were more likely to debate on wider range of deliberations in reaching their judgements; diverse panels was a progressively important element in preserving judiciary independence; and the existence of a diverse panel of judges was more likely to move the decision in the direction of what the law trying to achieve.[17] Cameron and Cummings[18] suggest that peer effects are decisive in looking the effect of judicial diversity on the impartiality of judicial decision making. In their study, they examined the effect of gender, racial and ideological diversity and find out that increasing racial diversity substantively changed the voting behaviour of other judges.

Additionally, the gender of the judges is somehow questioned as if it is matter or not in the issue of judicial diversity and the impartiality of the judges. In Radmacher v Granatino[19], the question before the court was whether courts should give effect to prenuptial agreement in which such agreement would override the usual principles of fairness and limit the rights of the parties at the time of divorce. The twist in the case are although it is usually the husband looking to protect his interests upon diverse, in this instance, it is the ex-wife who was trying to enforce the agreement. At the same time, the Supreme Court heard it as a panel of nine judges, including the first and only woman member of the UK’s highest court, Lady Hale. The judgement by the court was by a majority of eight to one, determined that such prenuptial agreements were legal and enforceable and Lady Hale is the one who was dissenting in the trial. The question that cannot be avoided from the judgement of this case are whether Lady Hale’s gender gave her an awareness that was not shared with the other eight male judges and, if so, whether this insight should have been allowed to influence her judgement. In her judgement, she expressed the importance of judicial diversity. Thus, the impartiality of judges is affected by the gender diversity of judiciary itself as more gender equality shown across the English legal system and by appointing more female judges the quality of the justice could be significantly improved.[20]

The establishment of Judicial Appointments Commission (JAC) through Constitutional Reform Act 2005 brings a major development on the appointment procedure for judges. Under the procedures set out in the act is that the judicial roles are selected on merit through “fair and open competition from the widest range of eligible candidates” and selecting “only people of good character and having ‘regard to the need to encourage diversity in the range of persons available for selections for appointments’”.[21] A problem for a Lord Chancellor to head the judiciary is the collective ministerial responsibility and makes it difficult for a Lord Chancellor for them to speak in public against government policies. Thus, to ensure the impartiality of the judges and the judiciary, the act removed the roles of Lord Chancellor as the head of the judiciary and replaced by the Lord Chief Justice. Through this process, the separation of powers that practices by the UK is being upheld and most importantly to ensure the judicial independence. Even though the approach taken had changes the landscape of the judges’ representative in the Cabinet, but the judicial independence is rationally stronger. The judiciary has become institutionally more independent of the executive and the legislature. Absolute responsibility and greater autonomy has been given to the judiciary to run the courts and the judicial system itself. Thus, the impartiality of the judges itself can rationally secured.

In a conclusion, it is always plausible to claim judges are impartial decision-makers in the pursuit of justice as long as the judges individually play their responsibilities for the purpose of why the law exist and they could have recognised the limitations or circumstances that may affect their judgement. Ensuring the impartiality and independence of the judges is not only the responsibility of States but most importantly it is also the responsibility of the judges respectively. There is a need for every judge to establish the margins of appreciation to achieve the legal certainty required for a judge to know when he has to hear a case and when not to. Personal element in the judicial decision-making is crucial. Besides, the judges are required to be aware on the values that they put forward in making decision for the quality and the pursuit of justice. Moreover, judges should be mindful that they should avoid involvement in politics as it may influence their judgement. Diversity among the judges are also important for the impartiality of the judiciary generally and the judges specifically. Thus, the establishment of JAC through CRA 2005 also has strengthen the independence and impartiality of the judiciary.

Table of Cases

UK Cases

• Radmacher (formerly Granatino) v Granatino [2010] UKSC 42,[2009] EWCA Civ 649
• Re Bow Street Metropolitan Stipendiary Magistrate ex p Pinochet Ugarte [1998] UKHL 41

Statutes

• Constitutional Reform Act 2005
• Extradition Act 198
• Human Rights Act 1998

EU Legislation

• Convention for the Protection of Human Rights and Fundamental Freedoms 1950

Bibliography

Books

• Elliot & Thomas, Public Law (2nd edition OUP, Oxford 2014)
• Griffith, The Politics of Judiciary (5th edition, Fontana Press 2010)
• Huxley-Binns & Martin, Unlocking The English Legal System (4th edition, Routledge 2014)
• Holland & Webb, Learning Legal Rules (9th edition OUP, Oxford 2016)
• Lord Radcliffe, Not in Feather Beds (1st edition, Hamish Hamilton 1968)
• McLead, Legal Method (9th edition, Palgrave Macmillan 2013)
• Slapper & Kelly, The English Legal System (17th edition, Routledge 2016)
• Syrett, The Foundations of Public Law (2nd edition, Palgrave 2016)
• Zander, The Law-making Process (7th edition, Bloomsbury 2014)

Journal Articles

• I. Hernandez, ‘Impartiality and Bias at the International Court of Justice’ (2012) 1 3 CJICL 183
• J, Cahill-O’Callaghan, ‘The Influence of Personal Values on Legal Judgements’ (2013) 40 4 J.Law&Soc. 596
• Wilson S, ‘Judicial Diversity: Where Do We Go from Here?’ (2013) 2 1 CJICL 7

Documents

• Hazell, “Judicial independence and accountability in the UK have both emerged stronger as a result of the Constitutional Reform Act 2005” (2015) UCL
• Judiciary of England and Wales, ‘Guide to Judicial Conduct 2003’ (2003)
• Office of the High Commissioner for Human Rights and International Bar Association, Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyers (2003)
• Piedrafia, Sanchez-BlancoMancera & Garcia, ‘Judicial Impartiality: Between Law and Ethics’(EJTN 2012)
• Thomas C, ‘Judicial Diversity in the United Kingdom and Other Jurisdictions: A Review of Research, Policies and Practices’ (CJA, 2005)

Thesis

• J Kemeys, ‘United Kingdom Constitutional Reform: Recognition of Judicial Independence and an Opportunity for Institutional Autonomy’ (MJur thesis, University of Birmingham 2013)

Websites

• A. Paterson and C. Paterson, ‘Guarding the Guardians? Towards an Independent, Accountable and Diverse Senior Judiciary’ (Centreforum, 2012) <http://www.centreforum.org/assets/pubs/guarding-the-guardians.pdf> accessed 20 February 2017
• The Guardian, Interview with Lord Dyson, Justice of the Supreme Court of the United Kingdom (The Guardian, October 2011) <http://www.guardian.co.uk/law/video/2011/oct/25/supreme-court-deliver-justice- video?INTCMP=SRCH> accessed 20 February 2017

Others

• Diversity and Judicial Decision-Making: Evidence from Affirmative Action Cases in the Federal Courts of Appeal 1971-1999 (Columbia Law Review 2003)
• Legal Foundations lecture slides, Lecture 15: The influence of personal values on legal judgments 

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[1] Office of the High Commissioner for Human Rights and International Bar Association, Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyers (2003)

[2] Zander, The Law-making Process (7th Edition, Bloomsbury 2014)

[3] J, Cahill-O’Callaghan, ‘The Influence of Personal Values on Legal Judgements’ (2013) 40 4 J.Law&Soc. 596

[4] Lord Radcliffe, Not in Feather Beds (1st Edition, Hamish Hamilton 1968), pp. 212-16

[5] The Guardian, Interview with Lord Dyson, Justice of the Supreme Court of the United Kingdom (The Guardian, October 2011) <http://www.guardian.co.uk/law/video/2011/oct/25/supreme-court-deliver-justice- video?INTCMP=SRCH> accessed 20 February 2017

[6]A. Paterson and C. Paterson, ‘Guarding the Guardians? Towards an Independent, Accountable and Diverse Senior Judiciary’ (Centreforum, 2012)<http://www.centreforum.org/assets/pubs/guarding-the-guardians.pdf> accessed 20 February 2017

[7] J Kemeys, ‘United Kingdom Constitutional Reform: Recognition of Judicial Independence and an Opportunity for Institutional Autonomy’ (MJur thesis, University of Birmingham 2013)

[8] Re Bow Street Metropolitan Stipendiary Magistrate ex p Pinochet Ugarte [1998] UKHL 41

[9] [2000] QB 451

[10] Griffith, The Politics of Judiciary (5th edition, Fontana Press 2010)

[11] Piedrafia, Sanchez-BlancoMancera & Garcia, ‘Judicial Impartiality: Between Law and Ethics’(EJTN 2012)

[12] Griffith (n 10)

[13] McLead, Legal Method (9^th edition, Palgrave Macmillan 2013)

[14] Judiciary of England and Wales, ‘Guide to Judicial Conduct 2003’ (2003)

[15] Slapper & Kelly, The English Legal System (17th  edition, Routledge 2016)

[16] Thomas C, ‘Judicial Diversity in the United Kingdom and Other Jurisdictions: A Review of Research, Policies and Practices’ (CJA, 2005)

[17] Thomas C (n 16)

[18] Diversity and Judicial Decision-Making: Evidence from Affirmative Action Cases in the Federal Courts of Appeal 1971-1999 (Columbia Law Review 2003)

[19] Radmacher (formerly Granatino) v Granatino [2010] UKSC 42

[20] Wilson S, ‘Judicial Diversity: Where Do We Go from Here?’ (2013) 2 1 CJICL 7

[21] Constitutional Reform Act 2005