How do we keep judges out of politics? That’s not a question you would even ask in the US, where a lawyer with no judicial experience has recently been appointed to the Supreme Court because of her political position. Approving President Obama’s nomination of Elena Kagan for what may prove to be a term of 30 years or more, the Senate was divided largely on partisan lines.
They do things rather differently in the UK Supreme Court. Its president, Lord Phillips, said a few days earlier that “unelected judges are better than elected judges”. He told reporters: “You are likely to have a more independent stance if you’re not looking over your shoulder wondering whether you’re going to appeal to your electorate.”
Paradoxically, the independence of judges in Britain makes it easier for them to become embroiled in politics. Sir Nicholas Wall, president of the High Court Family Division, wrote a letter at the end of July to the body that administers legal aid, pointing out that its plans for funding child-care work created “a grave danger that the system will simply implode”.
Sir Nicholas cannot have been too concerned when the letter leaked. When he was still Lord Justice Wall last November, he told the Association of Lawyers for Children that it was time for his fellow judges to “come off the bench”. In a speech that very nearly cost him his promotion by Jack Straw — a politician, of course — he argued “that as part of the transparency debate, it is for the senior judiciary to speak out in public on issues in relation to which they have knowledge and expertise”.
Provided the judges avoid prejudicing cases that they may have to decide in the future, authoritative judicial criticism of government policies is greatly to be welcomed. Where it starts to go wrong is when junior judges express what appear to be personal opinions on political controversies about which they have no particular expertise.
This summer, seven defendants were cleared of conspiracy to cause criminal damage at a factory in Brighton that helped provide weapons components for the Israeli Air Force. Summing up to the jury, George Bathurst Norman, a deputy circuit judge, described Gaza as a “giant prison camp” and asserted that US support enabled the Israelis to “cock a snook” at anything decided by the UN or the International Court of Justice.
As I have explained in a lengthy piece on the Standpoint website, the judge would presumably say he was simply reminding the jury of the evidence they had heard. But that has not satisfied his critics and we wait to hear whether the Lord Chief Justice regards Bathurst Norman’s remarks as having gone further than necessary.
At least they attracted some coverage in the media. How many people realised that the former president of Liberia was on trial for crimes against humanity until Naomi Campbell was called as a prosecution witness in August? I suspect that even fewer people could correctly identify the court that is trying Charles Taylor (the Special Court for Sierra Leone) or the court near The Hague whose premises it is using (the Special Tribunal for Lebanon).
In another part of the Dutch capital, the world’s first permanent international criminal court is struggling to complete its first trial — eight years after the court was established. In July, three judges headed by Sir Adrian Fulford ordered the release of Thomas Lubanga, an alleged Congolese warlord, because the prosecutor, Luis Moreno Ocampo, had refused to comply with the court’s orders. The defendant remains in custody pending the prosecutor’s appeal.
Writing recently in Counsel magazine, Sir Adrian pointed out that it was critical to the success of the International Criminal Court for its judges to be “fearlessly independent”. In his view, the countries that created the court bore a heavy responsibility for choosing judges who could demonstrate their disregard of politics.
He would not have needed to say this if his views had been shared by the governments concerned. In Selecting International Judges, a new study published by OUP, a team of four international lawyers produce evidence that judges have been selected for the ICC and the International Court of Justice as “a result of overtly political considerations or even nepotism”. Even candidates chosen through transparent and formal consultation “must work their way through a highly politicised election process”.
The lawyers who researched the study argue that “urgent steps need to be taken to limit the growing and pervasive role of extraneous political factors in order to ensure that politics does not overwhelm the prospects for selecting the very best judges for the international courts”.
Will our own courts fare any better?