By Peter Thompson
In his Cambridge Freshfield Lecture, Lord Neuberger gave a number of reasons, historical, geographical and emotional, for the view expressed in the Daily Mail and other newspapers that, “it is unacceptable for unelected judges to impose a diktat on a democratically elected parliament”. He said that this was a “peculiarly British” view, aimed particularly at the rulings on EU law by judges in Luxembourg and on human rights by judges in Strasbourg.
But I am not going to write about that. No, what troubles me about Lord Neuberger’s citation from the Daily Mail is the complaint about rulings (diktats) being made by “unelected judges”.
Election v appointment
It is true that the judges in the European courts are not elected. But UK judges are not elected either – they are appointed, mostly by Her Majesty the Queen – and our concept of the rule of law is of a judgment-seat before which the government and our legislators may be brought to account for exceeding their powers or not following due process. To do this job properly, the judiciary has to be independent of, and separate from, the Legislature and the Executive. Only then can justice be seen to be done.
A reminder of the need to keep judgment-making free from apparent bias or political influence came in 2000 when the judgment upholding the arrest and prospective extradition of Augusto Pinochet had to be set aside because of the links of one member of the 3-2 majority in the Lords with Amnesty International.
The other side of the Pond
On the other side of the Atlantic, the selection of the judiciary is not by appointment but by election and re-election. Theoretically, someone seeking judicial office could stand as an independent, but in practice candidates travel on a party ticket. Standing for election to a State office, such as district judge or district attorney, should not normally involve a lot of electioneering. On the whole, the candidate can leave it to the party to run an uncontroversial campaign and may indeed be elected unopposed. But as the elected judge progresses higher up the ladder, into the Federal courts and ultimately to the US Supreme Court, the politics become more intrusive.
The inescapable feature of judge selection in the US is that every judge is either a Democrat or a Republican and is badged as such – preferment to high office will depend to some extent on the fortunes of the party. Where the issues before the court are between citizens, this may not matter, but where the issues are between the citizen and departments of state or citizens and local authorities – immigration, social security, planning permission etc – there must surely be some concern that the judge will not want to let down the political party which got him, or her, elected and whose support may be needed for re-election and promotion. If the US were to sign up to the Convention on Human Rights, which they have not done, it must be wondered whether a system of party-aligned judges could deliver fair and impartial justice to the standard required by Art 6.
Bush v Gore
To see where a system of elected judges gets you take a look at the great case of Bush v Gore. In this titanic litigation in 2000 the nine judges of the US Supreme Court had to decide whether the Presidential election of Bush in the State of Florida could be upheld as legally valid, despite doubts about the vote counting – remember all those hanging chads – or whether the election was so legally flawed that a manual recount was the right course. The Republican Bush just won the day over the Democrat Gore by 5 to 4. The five were all Republicans and the four dissenters were all Democrats. Enough said.
Put like that, the Daily Mail readers would probably come out in favour of unelected judges, and so do I.
An extended version of this article appeared on New Law Journal here.