The current Government often complains about a “democratic deficit” in the courts. It seems that ”unelected judges” are making important decisions on social policy without any kind of democratic mandate, particularly in controversial human rights cases.
I agree that there is a democratic deficit in the courts. But it isn’t about elections. It is about access.
The Government seeks to solve the problem by involving Parliament more in the judicial process, the latest and most striking example being the Home Office’s attempt to codify Article 8 ECHR, the right to private and family life, in immigration cases. The Home Office wants fundamentally to alter the role of the courts, hoping that it will “shift from reviewing the proportionality of individual administrative decisions to reviewing the proportionality of the rules” (see para 39). The argument is that since judges are unaccountable, those who are accountable must be more central in the decisions they make, particularly in sensitive areas such as immigration.
This is attempt to take power away from judges. But why? A lot is made of the fact that judges are unelected. But that cannot be all there is; not all people who make important policy decisions are elected. Despite (or perhaps because of) their electoral mandate, politicians are little trusted by the public. And there is a strong argument that elected judges would be too open to the lure of populism, with an eye on the next election rather than the facts of the case.
Secluded surroundings of the Temple
In recent decades, Parliament has asked judges to consider a large and increasing range public law and human rights issues, often in the most sensitive circumstances. The judges have risen to the task; it is no coincidence that when the public requires a thorough and objective report on a controversial issue, the first calls are for a Judge-led inquiry. In the eyes of the public, judges are fair and objective, if a little out of touch.
But judges tend to come from the Bar. They are used to being a hired brain, squirreling away at clever written advice in the secluded surrounds of the Temple. That culture means that the courts resemble private members clubs rather than public fora where important decisions of social policy are being made every day.
This is no longer good enough. Judges and the Government fail to understand that in the internet age, open justice does not just mean opening the door to the courts. It means a completely new understanding of the old adage “Not only must Justice be done; it must also be seen to be done“.
Consider Parliament. Almost all of its proceedings, including committees, are broadcast online, and can be watched at any time. Documents relied upon and transcripts of what has happened are available almost instantly. And by opening access to the raw data, Parliament has inspired the BBC’s wonderful Democracy Live service, amongst others.
Now compare the courts. Not a single one of the millions of documents which are the foundation of every case is posted online. The Supreme Court, which hears a fraction of the cases, broadcasts its hearings online (although, significantly, hearings cannot be rewinded or replayed) and publishes excellent judgment summaries. The courts have made tentative steps towards Twitter, where millions of citizens are readily accessible. The Tribunal system also produces summaries, although they are hard to find online.
But aside from a few isolated examples, no summaries are produced for the thousands of cases each year which are decided in the Administrative Court and Court of Appeal, both of which are central to the public law system. The public, who the law affects fundamentally, are left trawling through dense, legalistic judgments. If the want to understand what it all means, they have to employ a lawyer.
To take a very recent example, the Court of Protection, which most people do not know even exists, published a sad, complex judgement on Friday in which a judge ordered that a severely anorexic woman should be force-fed rather than left to die. A Google News search reveals the story was reported in 152 news sources. Many of those reports will be inaccurate or superficial. But no official judgment or press summary has yet been released (I have uploaded a copy of the judgment here), so there is no authoritative source to compare those reports to.
Rule of law
The effect on the rule of law is stark. Lawyers and government departments regularly complain that rulings are misrepresented by the press and politicians. They are right. But what hope is there when the courts are producing impenetrable rulings and judges refuse to comment upon them? It is no wonder that the public reach for the tabloids for an overly simplified and inaccurate explanation.
It doesn’t have to be this way. In other countries, such as the United States, court documents are readily available online. As maligned as its decisions may be, at least the European Court of Human Rights releases press releases at the same time as its rulings and increasingly provides video explanations too.
More hearings are to be broadcast online. This is a good start. But what is needed is an entirely new strategy for open justice in the internet age. This Government promised in its Coalition Agreement to “promote a better understanding of the true scope” of civil liberties. Nothing has been done to fulfil this promise; arguably, the opposite has been achieved with Government ministers mischievously representing rulings.
There is a growing consensus in the legal community that much more can be done. I attended a seminar hosted by the Law Society last week entitled Human Rights for All. There was wholesale agreement among the large group of eminent lawyers, politicians and NGO workers that the courts could do more to increase access. A recent seminar at City University, Justice Wide Open, produced sensible and achievable ideas for opening up the justice system.
The public probably don’t want politicians telling judges how to judge. But it is time for judges to accept that with public policy power comes responsibility, and this goes beyond getting the decisions right. If the judges and courts did a better job of involving the public, they might find that the public is less receptive to politicians shifting the blame for unpopular decisions onto them. And as the steward of the court system, the Ministry of Justice bears a heavy burden too.
At a time when the Government is arguing for more secret hearings in national security cases, it should be working harder to ensure that the hearings which remain open are truly open. The open justice agenda is an opportunity not just to improve public understanding of civil liberties, but also to address the very “democratic deficit” about which this Government is so concerned.
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