Unelected judges dictating our laws etc. etc.

11 February 2011 by

Much has been made in the prisoner voting debate of the fact that out laws should not be made by, as The Sun puts it, “unelected dictators”.

Similarly, the Daily Mail saysthe time has come for Britain to tell unelected Strasbourg judges that they have overstepped their authority“, and the Daily Express poses a dilemma between “democratically elected Commons or an unelected and alien tribunal in Strasbourg“.

Just to set the record straight, unlike our own judges, judges  the European Court of Human Rights are elected.

According to Article 22 of the European Convention on Human Rights:

The judges shall be elected by the Parliamentary Assembly with respect to each High Contracting Party by a majority of votes cast from a list of three candidates nominated by the High Contracting

So the United Kingdom nominates its own candidate and has 18 seats on the Parliamentary Assembly which decides who is chosen. All  members of the assembly are MPs from domestic parliaments. So our own MPs vote on which judges to appoint. This is more power than they have to elect domestic judges.

And, again in stark contrast to our own jobs-for-life (well, until retirement) judges, after serving for a period of 9 years European judges cannot be reelected. Our own judge, Sir Nicholas Bratza, is due to be replaced in June 2012. The full procedure for electing judges, which is under review at the moment, can be found here.

It is a shame that none of the newspapers mentioned above spotted this inconvenient truth, and that the public have once again been misled about an important legal issue in order to fit with an editorial position.

The irony is that the democratic accountability of our own judges, by way of comparison, is practically nil. This led Michael Howard to complain recently that the democratic deficit means our judges are too powerful. The head of the supreme court, who is recommended by the prime minister and appointed by a committeeresponded that that this was unfair. But the fact remains that the public have little say on who hands out our domestic justice.

And, as Joshua Rozenberg has written, it is almost impossible to sack our domestic judges, even when they make gross errors. Perhaps we could take some advice from the European Court of Human Rights on how to make our own justice system more democratically accountable.

If the presentation of law in newspaper articles concerns you, the online Press Complaints Commission form is here.

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3 comments


  1. Hin says:

    Not the Mail, Sun or Express one would not expect them to check their facts or relate their opinions to anything other than their prejudices (of which they are not short)

  2. Ovalmaximus says:

    Good article. I’m getting tired of people who have no training or background in law trying to state facts of law rather than giving an opinion.

    But, let’s not forget the argument that the election of judges in Europe is often in line with the interests of the Member State and political loyalty is often rewarded. It’s well documented (Steiner and Alston) that the election process is far from satisfactory.

    Judges are, nonetheless, elected and you would hope in this day and age (to use a phrase that most commentators with a chip on their shoulder opt for) that jounalists would have the means and morals to chack the accuracy of their stories.

  3. ObiterJ says:

    You have chosen an interesting angle here. In England and Wales (I am not sure re Scotland / Northern Ireland) even lay magistrates are appointed following a selection process run by Advisory Committees. Professional judges are appointed via the Judicial Appointments Commission but that process is hardly without controversy.

    There is far too much deliberately misleading comment in the media about the European Convention and the court. Jack Straw joined in yesterday in Parliament referring to it becoming a Supreme Court of Europe. He. more than most MPs, should know better.

    If we were watching a boxing match between those for and against the European Convention then, at this stage, I fear that those against would be winning on points if only because much of the popular media is against. Often in this life people do not appreciate what they have until it is gone!

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