Why unelected judges should get our vote: reflections on Lord Neuberger’s Law Lecture

lord neubergerREX/Paul Grover

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.

Comments

  1. David Radlett says

    I think that the author misses the point slightly. Certainly when I remind anyone willing (or forced)to listen to me that judges (and those who goad them on) need to remember that they are “unelected, unrepresentative and unaccountable” it is not with the primary purpose of suggesting that the judges should be elected. Rather, it is to suggest that they should remember, before being tempted to push out still further the boundaries of judicial control (or to give it the proper label, kritarchy) that the primary role in policy-making and implementation lies with those who are elected, broadly representative and at least partially accountable for their actions in so doing.

    Of course if that message is not heeded – and I do not hold my breath in expectation that it will be heeded – then it will be necessary to consider ways in which their exercise of power can be legitimised. Election is one such method; nomination and scrutiny by those who do have democratic legitimacy is probably preferable.

    For the avoidance of doubt, problems with the ‘broadly representative’ and ‘partially accountable’ nature of legitimate decision-makers are, of course, not solved by handing power over to those who are not at all representative or accountable.

  2. says

    “Put like that, the Daily Mail readers would probably come out in favour of unelected judges, and so do I.”

    I beg to differ. Daily Mail readers would certainly think, ‘The right wingers won and the left wingers lost. Therefore, if we have elected judges here, that’s what’ll happen here, too.’

  3. says

    Actually, the judges of the European Court of Human Rights ARE elected (though not, as you perhaps meant, by universal suffrage).

    Each judge is elected by the Parliamentary Assembly of the Council of Europe (PACE) – a body of 318 legislators from all 47 national parliaments of the Council of Europe (including the UK Parliament) – from a list of three candidates submitted by each party to the European Convention on Human Rights.

    Indeed, there is quite an extended procedure for this election: there are strict criteria for how candidates should be selected by the government concerned, and they are assessed by at least two panels, including personal interviews. Lists may be (and occasionally are) sent back to the governments concerned because it is felt that not all three candidates are sufficiently qualified, or because of a lack of gender balance. There is more on this procedure here:

    http://www.assembly.coe.int/CommitteeDocs/2014/ajinfdoc03_2014.pdf

    Incidentally, the rules on gender balance are amongst the most progressive in the world as regards international courts: as things stand now, each list of three candidates must contain at least one woman (unless there are exceptional circumstances). This has led to a major improvement in the gender-balance of the Court – more than a third of the 47 judges are now women. This contrasts with only one woman on the UK Supreme Court (out of twelve justices).

    The system used for electing ECHR judges was a careful compromise reached by the drafters of the European Convention (including eminent British lawyers). It is intended to ensure that the judges on the Strasbourg Court are independent of the governments which put them forward – an essential feature of a sound judicial system, as you point out – while at the same time ensuring that the Court represents all parts of the continent over which it sits in judgment.

    Regards,

    Angus Macdonald
    (PACE press officer)

  4. Onlooker says

    Not all US judges are elected and I fear the original article missed the point about the Supreme Court of the US the political angle emerges once confirmation occurs altho’ a President may try to ensure that only judges that suit him are put forward (cf New Deal). It might be refreshing if our Supreme Court Judges faced confirmation hearings after all it is rather obvious that some have definite political views and are using those views in judgements albeit often disguised in legal jargon.

  5. David Radlett says

    Thanks to Angus Macdonald for an interesting insight into gender balance issues. It is disgraceful that of the 9 changes to the personnel of the UK Supreme Court since it came into existence, not one has involved the appointment of a woman. This position is all the more remarkable now the appointment of Lord Sumption has demonstrated (rightly) that previous experience as a judge is not a prerequisite for the job.

    However, the Parliamentary Assembly of the Council of Europe is not a democratic body. It is a nominated body. Even so, the position there is healthier than within the UK.

    I have been researching into the method of appointment of US Supreme Court judges, and I have to say that the US Senate Committee on the Judiciary have been known to carry out searching inquiries into the political views of nominees and have rejected some otherwise well-qualified candidates, including Clement Haynsworth, Harold Carswell and Robert Bork.