Will judges return to the dark ages?
1 November 1999
To most of the population, the UK's judges were, for a long time, an anonymous bunch of toffs, probably a bit doddery and completely in the dark about The Rolling Stones or Gazza. The average person on the street probably did not know what a Law Lord was, let alone be able to name one.
All that changed with the Pinochet case.
Under the world's spotlight, Lord Hoffmann - not only no longer anonymous, but now infamously known as "Legover Lennie" - forgot to declare his links to Amnesty International, and now Chile's ex-dictator has another chance of walking free when his case is heard for a second time by a different set of Law Lords on 18 January.
The case has serious implications. While the judiciary merrily bowled along, almost unchallenged for decade after decade, its future is now up for serious debate as a result of the Pinochet case.
The clamour for some form of judicial appointments commission for selecting judges will perhaps become irresistible. What form it takes is still anyone's guess.
Professor Robert Stevens, Master of Pembroke College, Oxford, and author of A History of the Law Lords as a Judicial Body and The Independence of the Judiciary, tells The Lawyer: "It is going to turn out to be an important decision. Not so much for Pinochet, but in terms of the way judges are viewed.
"In a most significant way, it will force us to ask questions about how we choose judges. The time may have been reached when it is legitimate to ask some fundamental questions about what their views are."
He says that many lawyers in the UK are horrified by the selection procedures employed in the US for Supreme Court judges, whose private lives are the subject of intense public scrutiny.
Stevens, who chaired the Justice Committee on the future of the judiciary back in 1994, was recommending then a new form of selection procedures. He favours less liberal models based on present systems in Israel, Germany and South Africa. "The US," he says, "may be a little too open and this country is not yet ready for that."
Richard Gordon QC, author of Judicial Review and Crown Office Practice, published this month, says the Pinochet affair will force judges to take cover.
"Judges who have been having a far more proactive public role discussing the work they do are going to retreat. That is going to distance judges from the issues they are deciding and in turn alienate the public from the judges," comments Gordon.
He believes judges have become more open in the past two years, prepared to write articles and make themselves more available.
"I think we will now return to the dark ages following the Pinochet decision.
"At a time when public interest in the judicial system is accelerating, it is sad that judges are going to have to retreat back to the anonymity they represented in the 1960s and 1970s - it is very regrettable. The Pinochet case could not have come at a worse time. The immediate perception of the case raised some important questions about a head of state's accountability of actions, but the true importance of this case for British justice is the fact the case has to be reheard by a different panel of judges. That will be the long-lasting significance."
Gordon says: "The Lord Chancellor is obviously very embarrassed by what has happened, and the House of Lords as an institution is going to have its image tarnished. The respect the public has for the House of Lords has diminished and that is very regrettable.
"We need a constitutional court of the kind they have in the US, such as the Supreme Court, where judges are appointed but where their backgrounds are fully known and all judges are involved in the decision-making process.
"What we are likely to have, particularly with the advent of the European Convention on Human Rights, is much greater public scrutiny of judges' backgrounds and their broad interests.
"One of the more disadvantageous effects of this case, coming at the time it has done, is that we are likely to see much greater challenges to judges in cases."
For example, hunt saboteurs could now have the right to object to fox-hunting judges presiding over their trials, says Gordon. "But the true distinction is between pre-conception and bias. We all have to work with pre-conceptions. Once you try to remove pre-conception from a judge, the justice system becomes unworkable. One of the sadder results of the Pinochet judgment is that the distinction has become camouflaged if not obliterated," he says.
The Lord Chancellor's Department (LCD) admits it is interested in some form of judicial appointments commission, but says the issue is not currently on the agenda. As a department spokesman puts it: "It is something possibly to be looked at, but it's not a priority at the moment."
But the case for change may become overwhelming, as judges' decisions take on greater and greater constitutional importance following the incorporation of the European Convention of Human Rights into domestic law.
That will lead to more controversial decisions. Liberty, the human rights pressure group, has campaigned for a selection procedure to lead away from the stereotype Oxbridge, white, male judge. And change seems necessary - as of 1 July last year, just eight women were ranked at High Court judge or above, and there were no men or women from ethnic minorities.
Liberty wants to see appointments made by a legal services commission, a quango with its own civil servants and made up of judges from the House of Lords, the Court of Appeal and the High Court. But the new commission should also include legal academics and lay members. And ultimately, what the human rights group wants to see is the current system of secrecy and lack of accountability scrapped altogether.