There is a democratic deficit in the courts… here’s how to fill it

17 June 2012 by

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.

Growing consensus

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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  1. Geoffrey says:

    I think that there was no talk of “democratic deficit” during the Jubilee weekend for the good and sufficient reason that the Monarchy actually underpins and stabilises the parliamentary democratic system, counter-intuitive as that may seem at first glance.

  2. Jon says:

    I note there was no mention of ‘democratic deficit’ during the Jubilee weekend…

  3. Jono793 says:

    The Government is supposed to be democratic. The Judiciary is supposed to be independent. That’s how it works. You could argue that there’s a deficit of transparency and accessibility in the courts, and perhaps we could do with a few more judges drawn from outside the magic circle. But adding a democratic element to the courts would be akin to pouring petrol into a diesel engine!

    The problem with elections is that they tend to get dominated by the party political establishment. Just look at elected police commissioners. The Tories argued, with some credibility, that the police are too prone to political interference, and too distant from the communities they are supposed to serve. So we’ve ended up with elected police commissioners to act as a check against that. Two years on and the majority of the elections have been convincingly sewed up by the very party-political groups whose political interference locally elected commissioners were supposed to protect against.

    Do we really want our courts to resemble the American Supreme Court, where politicians are free to appoint and promote whichever judges are politically sympathetic to their party?

  4. jtownend says:

    Excellent and timely piece, thank you. Important questions are being raised about secret hearings, but we shouldn’t forget that even the information that a judge considers legitimately public isn’t easily accessible to the ordinary person: the Court of Protection example you raise is a good one. In terms of understanding the detail of the case and verifying the accuracy of media reports, it’s crucial that we make more primary data available where possible.

    If you’re not a lawyer or within an academic institution, it’s very hard to access this stuff as I’ve argued before. This is an issue for NGOs and small organisations, as well as the general public. So many judgments aren’t freely available, let alone summaries. To an extent, legal blogs like this one and many more plug the gap (and, as Adam argues in our Justice Wide Open Publication and his Leveson evidence, “act as a corrective” to poor media coverage).

    I went to two events last week at which this issue was raised in different ways during discussions: an OxPILS conference on data protection, freedom of expression and the “Right to Be Forgotten” raised some of the legal / ethical questions we need to consider as we disseminate courts information online, highlighting the importance of a a careful and consistent approach. On Friday, University of Reading’s Law, Terrorism and Right to Know project ran a day on legal research skills at IALS. Again, the issue of court reporting and media resources came up, following a presentation by Will Gant, a court reporter who has been drawing attention to issues around access to legal documents and court proceedings.

    Thank you for the mention of the Justice Wide Open event at City University’s Centre for Law, Justice and Journalism – we’ve now produced a collection of working papers: it features 14 chapters by leading lawyers, academics and journalists covering a wide range of issues. PDFs of the chapters will be made available next week. It would be great to hear from anyone who is interested in continuing the discussion and helping us develop recommendations – /

  5. Geoffrey says:

    “Democratic” seems to be something of a buzzword. Taken literally it means rule by the people, by implication, all the people. It does not mean rule by the majority alone, that’s mob rule. It certainly does not mean rule by a political party, that is an oligarchy. The standard of understanding of a Judge must be higher than that of most people, otherwise his/her rulings are of no value.
    “Democratic Deficit”? Isn’t that what juries are for?

  6. Complaining about a ‘democratic deficit’ in the courts is like complaining that the batsman is attending the crease without a bunch of flowers.

    I also find it ironic that the principal complainants are the unelected ConDem government.

  7. ObiterJ says:

    Could not agree more but I would not be holding my breath for the resources to be made available to place all the material on the internet – great as it would be.

    This is attempt to take power away from judges. But why?

    Quite simply – Power. The politician at Westminster knows best.

  8. MTPT says:

    One problem with that claiming a “democratic deficit” exists is the integral assertion that democracy is necessary or relevant to the process or institution under consideration.

    Polticians – of whatever political stripe; David Blunkett was always an egregious offender – who assert a democratic deficit in the courts generally do so for their own ends. We should not seek accommodation with them; we should instead put them to proof that democracy has any place in the area they criticise. There is, after all, a democratic deficit in using elections as a proxy for democracy, and the assertions of “democratic legitimacy” by politicians are just that – assertions.

    Further, claiming that courts are subject to a democratic deficit is a category error in most cases; in a Western European “liberal democracy”, the courts are an explicitly anti-democratic institution, serving to make democracy palatable by mitigating or avoiding its effects. In this, they are the practice for which human rights are the principle.

    It may be true that “[t]he public probably don’t want politicians telling judges how to judge”, but I am not sure that the public would not want the ability to tell judges how to judge. Witness the petition to strip “[c]criminals who are notorious as a result of a heinous crimes” of the right “…to receive damages from newspapers, or any journalists, over privacy intrusions, like hacking phones or emails.”

    In terms of the solution proposed above, I think access is being confused with accountability. Providing passive access to documents would help make some discussion more informed, but how does it improve the level of legal awareness (substantive or procedural) in the general population?

    Compare the impact of freedom of information, especially its publication schemes: the ability to access information, and the wealth of material published, has not materially improved awareness of the political and administrative process; it seems largely to have functioned as a indirect subsidy for political journalism.

    Consider broadcasting of parliament: the role of the media as a filter (in many cases a polarising one) for the political process shows no signs of reducing.

    Take the two together, and you have the Leveson Inquiry, proof that simply streaming hearings and publishing documents will not improve understanding or accountability. The filtering and skewing role of the media is especially strongly demonstrated here.

    This is, of course, separate from the question of whether court processes should be open. Having been forced to pay for the provision of a service, taxpayers should have the fullest possible access to it.

    Judicial accountability is trivially easy to arrange, but would be wholly unpalatable for the legal “establishment”: either permit a proper market in adjudication, or introduce retention elections. Or both. I suspect that the latent cultural and communication issues which often characterise the judiciary would be resolved at a stroke.

  9. I’ve been to a number of family court, Crown Court and Appeal Court hearings and have heard LOTS of complaints from victims of white collar crimes. See with 112,000 visits in less than 2 years.

    I am simply amazed that HMG doesn’t equip all courts with video recording equipment. There are fancy videolinks but, if at all, expensive transcription services. No wonder, victims complain about doctored records with (inaudible) in sensitive places.

    The speed of a case currently in Wood Green Crown Court is determined by the typing of the judge! Following directives of his senior colleague in the Family Courts who benefits from the privilege of secret courts, he doesn’t allow people in the public gallery to take notes, unless they are media professionals. What kind of ruling / law / ‘justice’ is that?

    You write about ‘open justice in the internet age’. PLEASE make it happen!!! For all victims of child snatching, bankruptcies and home repossessions. What they have in common is the falsification of ‘official’ documents. Video recordings would be a FAR better reflection of reality than words on dated papers!

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