{"id":374,"date":"2019-06-05T14:57:03","date_gmt":"2019-06-05T14:57:03","guid":{"rendered":""},"modified":"2019-06-10T19:31:43","modified_gmt":"2019-06-10T19:31:43","slug":"impartiality-judiciary-analysed-9262","status":"publish","type":"post","link":"https:\/\/www.lawteacher.net\/free-law-essays\/judicial-law\/impartiality-judiciary-analysed-9262.php","title":{"rendered":"Impartiality of the Judiciary Analysed"},"content":{"rendered":"

\u2018Judges are impartial decision-makers in the pursuit of
\njustice\u2019. To what extent is this claim plausible? <\/em><\/strong><\/p>\n

Under the UK
\nconstitutional law, the principle of judicial independence derives from the
\ntheory of separation of powers, whereby the Executive, Legislature, and
\nJudiciary form the three separate branches of the government. The Judiciary
\nplays an important role in adjudicating disputes according to the existence
\nlaw; the judges are the main element to interpret and uphold the law. Thus, the
\nimpartiality of the judges is crucial in practising the theory of separation of
\npowers. Based on the rule of law itself, it is important in protecting human
\nrights and the fundamental freedoms of the individuals.[1]<\/a>
\nFurthermore, the impartiality of the judiciary is a fundamental right in the
\ncontext of effectiveness of a justice system. However, to what extent are
\njudges personally and substantively independent in a diverse state like the UK?
\nThis essay will discuss the factors that might influence the impartiality of
\njudges in making decisions. The factors will be discussed include the personal
\nelements, political influence, judicial diversity and the impact of Judicial
\nAppointments Commission (JAC) and Constitutional Reform Act 2005. <\/p>\n

Generally, the fundamental right of the impartiality of the judiciary<\/a> enshrined in the Article 10 of Universal Declaration of Human Rights<\/em> and was confirmed in the Article 14 of the International Covenant on Civil and Political Rights<\/em> (ICCPR). Furthermore, the Human Rights Act 1998 <\/em>(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<\/em> (ECHR), right to a fair hearing. <\/p>\n

Personal
\nelements are recognized to be one of the contributing factors in judicial
\nlaw-making.[2]<\/a>
\nDebates among the academicians have identified several components including
\ndemographics, judicial activism, morality, personal values and political
\nideology of judges individually.[3]<\/a>
\nLord Radcliffe[4]<\/a> argues
\nthat the judges work in a mechanical system. In interpreting the law, it is
\nneither to be on their command of reasoning nor their knowledge. It does matter
\non what personal quality do the judges bring to their responsibility, but in
\nthe end, his structure of thought and belief, and his experience of life are
\nyet to have built upon their judgement. Proven by Lord Dyson, he acknowledges
\nthat the \u201capproach of life\u201d and \u201cphilosophy\u201d may play a significant role in his
\ndecision making[5]<\/a>.
\nLady Hale in giving evidence before the constitutional committee in 2011 noted
\nthat \u201ceverybody comes to the task with a set of values and perspectives that
\nmay lead you to pick different bits of the materials to reason towards an
\noutcome.\u201d[6]<\/a>
\nConsequently, judges need to uphold the core principle of the judicial
\nindependence respectively despite of different personal elements that applied
\nin making a decision.<\/p>\n

Logically,
\nit is always assumed that for a fair and impartial trial or hearing, the judges
\nmust be free from the pressure and interference from any other source. other
\nthan the degree of internal pressure of judges\u2019 personal beliefs and
\nmotivations. The sources may include pressure from other judges, the Executive
\nor the public itself, other than the degree of internal pressure of judges\u2019
\npersonal beliefs and motivations.[7]<\/a>
\nIn Pinochet<\/em>[8]<\/a>
\ncase, the defendant who was on a trip to the UK, had an arrest warrant issued
\nby a Spanish judge for crimes against humanity. It was decided by the House of
\nLords through a wide reading of the Extradition Act 1989, the sovereign
\nimmunity was not to be given. It was felt that the severity of the crimes was
\nenough for human rights to take superiority over English law. The impartiality
\nof Lord Hoffman\u2019s decision, one of the Law Lords sitting on the case was
\nquestioned. This is because his involvement with a human rights organisation, Amnesty
\nInternational and his wife was a full-time employed in the organisation. It is
\nreasonable to say that there was a real public interest in the judiciary by
\nthat time. The need for judges to be independent and impartial is important to
\nensure public confidence towards the judiciary and the decisions are made in an
\nunbiased way and fair based on the law and evidence presented. <\/p>\n

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

Law is
\nan inherently and inescapably political process. In making legal decisions,
\njudges decide where the weight of public approval is to be replaced and which
\nforms of behaviour are to be sanctioned. There is an increasingly tendency for
\ncontemporary judges to become directly, openly and actively engaged in more
\novertly political activity. Kilmuir rules which introduced in 1955 were
\ndesignated to control instances when the judiciary could express opinion in the
\nmedia. However, the rules are repealed in 1987 by Lord Mackay, since then, the
\njudiciary have been more open in expressing their views which is not restricted
\non their judicial functions but also on wider political matters. Griffith<\/em>[12]<\/a>
\nargues that the value and the threat, the strength and the weakness of the
\njudges are placed on the law and the conception of the public interest which
\nthey owe their faithfulness. <\/p>\n

In the
\ncontext on the political aspect, it is the responsibility of the judges themselves
\nto ensure the independence and the impartiality in the pursuit of justice. The
\ndevelopment of the Bangalore Principles of Judges that were tentatively
\ndeveloped in 2000 are now increasingly be a reference document which accepted
\nby all legal systems and judiciaries.[13]<\/a>
\nThe principles described the professional and ethical code of conduct for
\njudges. And more practical outline of what independence and impartiality mean. The
\nsix values described are impartiality, integrity, independence, equality,
\ndiligence, competence and propriety. The Guide
\nto Judicial Conduct<\/em>[14]<\/a>
\nwritten in light of the principles mentioned clarify that involvement of the
\njudges in any kind of political activities including political fundraising
\nevents and political discussion. Moreover, the need of self-control also
\ninvolves not joining in any public demonstrations. This may cause the judge to
\nbe associated with political viewpoints may diminish their authority as a judge
\nand may lead to a perception of bias. Where a close family member of a judge is
\nactively involved in politics, the judge needs to bear in mind that in some
\nproceedings, the political matter might arise and this may affect the judge\u2019s
\nown impartiality and objectivity from the political process. Thus, the judges
\nthemselves play an essential role to preserve their impartiality as a
\ndecision-maker with the influence of the political element that is inescapable
\nto law. <\/p>\n

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<\/a> 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]<\/a> 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]<\/a><\/p>\n

Judicial
\ndiversity is important in increasing public confidence in the impartiality of the
\njudiciary and in the quality improvisation of judicial decision-making. In the
\nUnited States, extensive study on the actual effect of a diverse judiciary on
\njudicial decision-making. The studies by the collegiate appellate courts
\nindicated that the panel of judges from diverse backgrounds were more likely to
\ndebate on wider range of deliberations in reaching their judgements; diverse
\npanels was a progressively important element in preserving judiciary
\nindependence; and the existence of a diverse panel of judges was more likely to
\nmove the decision in the direction of what the law trying to achieve.[17]<\/a>
\nCameron and Cummings<\/em>[18]<\/a>
\nsuggest that peer effects are decisive in looking the effect of judicial
\ndiversity on the impartiality of judicial decision making. In their study, they
\nexamined the effect of gender, racial and ideological diversity and find out
\nthat increasing racial diversity substantively changed the voting behaviour of
\nother judges. <\/p>\n

Additionally,
\nthe gender of the judges is somehow questioned as if it is matter or not in the
\nissue of judicial diversity and the impartiality of the judges. In Radmacher v Granatino[19]<\/strong><\/a><\/em>,
\nthe question before the court was whether courts should give effect to
\nprenuptial agreement in which such agreement would override the usual
\nprinciples of fairness and limit the rights of the parties at the time of
\ndivorce. The twist in the case are although it is usually the husband looking
\nto protect his interests upon diverse, in this instance, it is the ex-wife who
\nwas trying to enforce the agreement. At the same time, the Supreme Court heard
\nit as a panel of nine judges, including the first and only woman member of the
\nUK\u2019s highest court, Lady Hale. The judgement by the court was by a majority of
\neight to one, determined that such prenuptial agreements were legal and
\nenforceable and Lady Hale is the one who was dissenting in the trial. The
\nquestion that cannot be avoided from the judgement of this case are whether
\nLady Hale\u2019s gender gave her an awareness that was not shared with the other
\neight male judges and, if so, whether this insight should have been allowed to
\ninfluence her judgement. In her judgement, she expressed the importance of
\njudicial diversity. Thus, the impartiality of judges is affected by the gender diversity
\nof judiciary itself as more gender equality shown across the English legal
\nsystem and by appointing more female judges the quality of the justice could be
\nsignificantly improved.[20]<\/a>\n<\/p>\n

The establishment
\nof Judicial Appointments Commission (JAC) through Constitutional Reform Act
\n2005 brings a major development on the appointment procedure for judges. Under
\nthe procedures set out in the act is that the judicial roles are selected on
\nmerit through \u201cfair and open competition from the widest range of eligible
\ncandidates\u201d and selecting \u201conly people of good character and having \u2018regard to
\nthe need to encourage diversity in the range of persons available for
\nselections for appointments\u2019\u201d.[21]<\/a>
\nA problem for a Lord Chancellor to head the judiciary is the collective
\nministerial responsibility and makes it difficult for a Lord Chancellor for
\nthem to speak in public against government policies. Thus, to ensure the
\nimpartiality of the judges and the judiciary, the act removed the roles of Lord
\nChancellor as the head of the judiciary and replaced by the Lord Chief Justice.
\nThrough this process, the separation of powers that practices by the UK is
\nbeing upheld and most importantly to ensure the judicial independence. Even
\nthough the approach taken had changes the landscape of the judges\u2019
\nrepresentative in the Cabinet, but the judicial independence is rationally
\nstronger. The judiciary has become institutionally more independent of the
\nexecutive and the legislature. Absolute responsibility and greater autonomy has
\nbeen given to the judiciary to run the courts and the judicial system itself.
\nThus, the impartiality of the judges itself can rationally secured.<\/p>\n

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. <\/p>\n

Table of Cases<\/h3>\n

UK Cases<\/h4>\n