NEITHER CLOISTERED NOR VIRTUOUS?
JUDGES AND THEIR INDEPENDENCE

IN THE NEW MILLENNIUM*

Michael J BeloffQ.C. **

It is a great privilege for me to be invited to give this lecture which
commemorates one of the outstanding common law judges of the century whose
family are so happily represented here today and to follow, like a solitary page
behind a line of Wenceslases, in the footsteps of the far more august speakers
who have preceded me in this role. I know how much the invitation pleased my
father, Lord Beloff, a faithful member of this Club, and only regret that he did
not live long enough to save me from errors and infelicities that, in the absence
of his usual wise guidance, it will inevitably contain.

I have chosen as my title a corruption of one of Lord Atkin's most celebrated
dicta "Justice is not a cloistered virtue" uttered as part of the advice of the Privy
Council to His Majesty in Ambard v. Attorney-General for Trinidad and
Tobago. I The case revolved around the conviction for contempt of court of the
editor for a leading article in the Port of Spain Gazette entitled "The Human
Element." The editorial criticised in a manner that would have astounded the
editor of The Sun, both for its polysyllabic vocabulary and for its moderate tone,
the alleged inequality of sentences passed in the islands for certain criminal
offences.

Lord Atkin's observation was apt for my purposes in a number of overlapping
ways. It is not, I hasten to assure you, that I intend to verge on the contemptuous
in my remarks about the judiciary of England and Wales. Many of my best
friends are judges and I hope that this situation persists beyond the conclusion
of this lecture - and at least as long as I remain a practising member of the Bar.

But I wish to raise some questions about them with, of course, the greatest
respect, a phrase that, I will explain for any non-lawyers present, when uttered
in Court, bears the precise opposite of its literal meaning.

* The Atkin Lecture, The Reform Club, 18th October, 1999.
** President, Trinity College, Oxford, Judge of Court of Appeal, Jersey and Guernsey,
Master of the Bench of Gray's Inn.
I (1936] AC. 322 at 335.

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I wish to suggest that contemporary criticism by others than myself of judges
would stretch even the tolerance of Lord Atkin.

I wish to examine whether and to what extent, judges either as volunteers or
as conscripts have now emerged so far from the cloister into the arena as to put
in jeopardy the independence which is their single most precious virtue.

And I wish to consider how the process of erosion can be halted, if it has not
already gone too far.

Let me start, as so much discussion about the role of the contemporary
judiciary in England must start, with the case of General Pinochet. For I have
little doubt that the case and its consequences will have had as dramatic an
effect on perception and, as a result, treatment of the judiciary as any other
single happening in the recent past.

The bizarre sequence of events in the Pinochet case which led to the three
decisions indexed blandly in the Law Reports as Ex p. Pinochet Ugarte Nos.],2
i and 34 is well known. In the first case the House of Lords split three-two in
favour ofthe proposition that the General was not immune for reasons of
sovereignty from extradition to Spain on charges oftorture. In the second, the
House unanimously set aside that decision on the grounds of apparent bias of
one of the Law Lords involved, Lord Hoffmann, who had not disclosed his links
to Amnesty International, an intervener in the proceedings. In the third, the
House split five ways on the same issue as had been raised in the first h.::aring
and, while favouring, again by a bare majority, extradition did so on extremely
limited grounds, indeed advised the Home Secretary to reconsider whether to
exercise his discretion to extradite. The case is now poised on a journey from
the Bow Street Magistrates to the Divisional Court. 5

There were some obvious lessons to be learned.
The first and foremost was the critical importance of the twin precepts that

justice not only be done, but be seen to be done, and that, for that purpose, no
man may be a judge in his own cause. As Lord Hope observed: "One ofthe
cornerstones of our legal system is the impartiality of the tribunals by which
justice is administered;,,6 and as Lord Nolan, the most recent, ifnot the onlie

2 R v. Bow Street Metropolitan Stipendiary Magistrate ex parte Pinochet Ugarte (No.1)
p 998] 3 WL.R. 272.

R v. Bow Street Metropolitan Stipendiary Magistrate ex parte Pinochet Ugarte (No.2)
II999] 2 WL.R. 272.

R. v. Bow Street Metropolitan Stipendiary Magistrate ex parte Pinochet Ugarte (No.3)
~1999] 2 WL.R. 827.

General Pinochet was not extradited by the Home Secretary on the grounds of his poor
health. He subsequently returned to Chile.
6 [1999] 2 WL.R. 272 at 288.

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begetter of the standards which should guide those in public life added "In any
case, where the impartiality of a judge is in question the appearance of the
matter is just as important as the reality.,,7

The second was that our judges can nowadays be involved in decisions
freighted with political implications of the highest sensitivity: it indeed may
strike someone not versed in the niceties of extradition law as odd that English
judges should have any role in deciding whether a.former leader of a friendly
foreign state must stand trial in the courts of another friendly foreign state.

The third is that a result of litigation can often depend upon the composition
of the tribunals. One could construct, what I shall loosely call a pro-Pinochet
majority out of the members ofthe appellate committee who sat in cases one
and three. Quot judices tot sententiae, if! may surreptitiously make use of a
language now barred in the age of Woolf - the Vulpine era - from the
vocabulary of our Courts. This proposition, familiar even to pupil barristers, let
alone the subscribers to the American realist school of jurisprudence, may not
have made hitherto a similar impact upon the general public. On the Clapham
omnibus, they are said to speak of other things. But the attention of that public
is now inevitably focussed upon who selects the Law Lords, and who indeed
selects the panels in any particular appeal, and, more generally, how senior
judges are chosen for their distinctive constitutional role.

The fourth, and maybe most doleful, is that judges can make mistakes. Lord
Hoffmann has never explained publicly the circumstances of his non-disclosure;
but his failure has been expensive in terms of his own reputation and the
reputation of the judiciary as well as to the public purse. I lack nothing in
admiration for him. He was in a former incarnation my Roman law tutor at
Oxford. He is nowadays recognised as an intellectual powerhouse among even
the present Law Lords. But as Homer nodded, so, alas, did Hoffmann. I want to
develop some further thoughts from this point of departure. Judges share with
other lawyers the unpopularity which inevitably stems from involvement in
other peoples disputes; if there were no disputes, there would be no need for
judges; and the exercise of dispute resolution, touches the lives of citizens on a
micro, if not a macro basis, more intimately than the activities of other organs of
government. From the very nature of their function springs the very imperative
for their independence. But we take it as axiomatic that our judiciary not only
should be, but are independent - by which we mean broadly that the judges
approach cases before them, untainted by any interest in their outcome, free
from any outside pressure to reach a decision in a particular way, and excluding
from their consideration, so far as is humanly possible, any of those prejudices

7 Ibid at 288.
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which are the product of class, race, gender, or genes. As Lord Saville has
recently written, the best judges are "people who will apply the rule of law,
people who are able, and seen to be able, to put aside their personal feelings and

. " 8VIews..
We institutionalise judicial independence by immunizing the higher judiciary

from dismissal other than by address to both Houses of Parliament;9 and by
legislation which prevents judicial salaries from being diminished other than by
statute itself. 10 It is well settled for the same policy reasons that judges as well
as other participants in the forensic process are immune from action for
statements made in the course of proceedings, even if made maliciously, II and
certainly if made foolishly!
We view with a sense of distaste but also of comparative satisfaction stories

from overseas such as - and 1 take them at random from the last twelve months -

the attack by the Government of the People's Republic of China
on the decision of the Court of Final Appeal to give mainland
children born to Hong Kong residents a right of abode in the
former colony:

the invitation extended by President Mugabe to three Supreme
Court judges of Zimbabwe to resign because they pointed out in
a judgment that Armed Forces are not entitled to arrest civilians:

the unconvincing verdict on bizarre sexual charges against
former Deputy Prime Minister Anwar in Malaysia;

and, least remarked in this context but maybe the most telling of
all, the acquittal of President Clinton on charges of
impeachment, where the requisite dispassionate analysis by the
Senate, pro tern constituted as a Court of law and fact, curiously
led all Democrats to one conclusion and all Republicans to
another. No better example could be furnished of politics
trumping law. But though such gross aberrations would not
conceivably occur in this jurisdiction, is any sense of

8 Commercial Lawyer 1999 (speech 27th January, 1999).
9 The Act of Settlement 170 I.
10 See the Supreme Court Act 1981 s.12; the Administration of Justice Act 1973 s.9
II Mondv.Hyde [1999] 2 WLR 499.

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complacency about the domestic state of judicial independence
completely justified?12

Let me start with the casus belli in the Hoffmann case. I very much doubt that
conflicts of interest in the personal sense are a pervasive problem in this
country. And hitherto there has been a hallowed customary way of dealing with
them if and when they arise. The case of Megacorp International v. Worldwide
Pic. is called on; and the Judge says to Counsel before it starts, "1 should
mention that my aunt Agatha has a parcel of 10 shares in the Plaintiff company
in case either side has any objection to my sitting." Counsel have a purely
formal whispered interchange with their Instructing Solicitors and say in chorus,
"My Lord - or it may be my Lady - my clients are perfectly content for you to
hear this matter." The Judge groans inwardly at the prospect of an eight week
reinsurance trial, spanning as it does, Lords, Wimbledon, Henley and the Open
Golf Championship, and the case continues. It is recorded that when Lord
Justice Russell made a similar statement in the Court of Appeal, at the start of
what threatened to be a lengthy and tedious hearing, Lord Denning, the then
Master of the Rolls, leant over and said, "If my brother Russell thinks he avoids
sitting in this matter on as flimsy a pretext as that, he should think again." But
we live in more sensitive and less civilised times. The Lord Chancellor wrote in
stark terms to the Senior Law Lord in the wake of Pinochet NO.2 urging "every
effort to ensure that such state of affairs would not occur again" and requiring
appropriate consideration and, if need be, disclosure of any such potential
conflicts of interest. 13 And the word has gone out at lower levels too. Judge
Henry Pownall, retired from tlle Old Bailey said in his valedictory a fortnight or
so ago that he found it "sad, even offensive, being bombarded by bumph from
on high telling me that I must disclose my personal interest I may have or might
have, which might be seen to have some effect on my judgment - as if I had not
complied since pupillage." The Sunday Times somewhat tendentiously
purported to identify judges, including three in the High Court, who were said
to have flouted the rule that commercial directorships should be surrendered on
appointment. 14

In truth, there was far more smoke than fire. But judges have became wary, in
circumstances of some perceived potential partiality, shunning even the
traditional way of seeking parties' waiver of objection to their sitting, to which I

12 Halsbury's Laws (4th ed.) vol. 8(2) para.303; e.g. Mond v. Hyde ibid at 508
13 The letter of 17th December, 1998. More than 100 M.P.s signed an early day motion calling
(unsuccessfully) for amendments to the Access to Justice Bill to introduce a compulsory
register of judges' interests.
14 28th March, 1999.

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have already referred, and have recused themselves on a number of grounds; not
only of shareholding (however small) in a corporate party, but of an Oxford
degree where the University was a litigant, membership of the same set of
Chambers as one of the advocates, and, in one of my own cases, the fact that the
Judge had the day before received communion from a Dean who was a member
of the relevant Committee of the Respondent quango! Judge Hooton who
famously adjourned a criminal trial to ensure his presence at the Wimbledon
semi-finals (which he was, despite the predictable press hullabaloo contractually
entitled to do) chose not to sit in a case involving a hunt saboteur because of his
own interest in rough shooting.15 Caesar's wife might have regarded some of
these reactions as over sensitive.

Patrick Bartle, the stipendiary magistrate who heard the application to
extradite General Pinochet was revealed in The Times, as a member of the
Conservative Party. While this might make him an endangered species, it could
hardly by itself disqualify him from hearing the case, - and did not, in the event,
prevent him from making an extradition order. Many judges have been or are
members of or voters for political parties. If such membership or sympathy
were held to disqualify from sitting in any case with political implications (as
distinct from a case actually involv.ing that political party) we should soon have
no eligible judges at all!

But, more important, the notional cure is becoming more malign than the
supposed disease. Challenges multiply as the so-called Hoffmann card is
played. A golden opportunity is given to unscrupulous litigants to affect the
make up of their Court by asserting a lack of independence, while fearful in fact
of independence itself. By coincidence this very week the Court of Appeal
consisting of the Lord Chief Justice, the Vice-Chancellor, and the Master of the
Rolls - Tom, Dick and Harry, if I may be familiar - are deciding a series of
appeals which may result in guidelines to curb what the Lord Chancellor has
trenchantly termed "a legal industry."16

Interestingly few, if any, have sought to question whether it was appropriate
for a Judge such as Lord Hoffman to be a member of even so apparently
admirable a body as Amnesty. The present Lord Chief Justice, in a book edited
by the present Solicitor-General, wrote only a few years back: "In this country a
judge will undoubtedly expect to exercise considerable discretion about the
bodies with which he will allow himself to be associated, and in avoiding

15 The Times, 7th August, 1999.
16 The Court of Appeal is set to resolve the issue as to when a judge mayor may not sit in a
series of test cases in October: The Times, 6th September, 1999. See now Locabail (U.K.) Ltd
v. Bayfield Properties Ltd [2000] 2 W.L.R. 870.

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involved in any campaigning organisation of even a non political kind."I? After
all one person's political prisoner is another person's terrorist.

Judges have also become more public and therefore publicized since the
abolition of Kilmuir Rules, which prohibited them from media contact unless
specifically authorised by the Lord Chancellor. The rationale was that silence
greatly enhanced their reputation for wisdom. At a time when we are now
becoming as familiar with the media judge as we o~ce were with the media don,
the jury is out on whether it has been further enhanced by their speaking out. In
my view, judges should be judged on their ex cathedra judgments, not their
extra-curricular pronouncements, and should seek to confine themselves to the
former.

Yet looming on the horizon is the insidious phenomenon of televised Courts. I
say insidious because quite apart from the potential for perverting what purports
to be educational into what is envisaged as entertaining, the presence of
television can necessarily affect judicial behaviour: no-one behaves in the same
way on camera as in camera. The performance of Judge Ito at the OJ. Simpson
trial, should stand as a warning signal. It is not only advocates, but judges who
can be tempted to play to the gallery. Immunity from such infection of their
independence should, in my view, be preserved. c;omprehensive coverage of
cases would stupefy. Edited coverage would distort. All television corrupts,
selective television corrupts absolutely.

There are a number of other ways in which the judiciary become involved in
political controversy via extra-curricular activities, though as a result of
compulsion, not free will, through their recurrent chairing of enquiries of a
political characterI8 which (significantly) become known by the name of the
presiding judge: Nolan,19 Scott,20 Saville,21 Phillips,22 something (interestingly)
only permitted in the United States in situations of national emergency, as
exemplified by the Warren Commission inquiry into the assassination of
President John F. Kennedy. [The canons of judicial conduct promulgated by
American Bar Association are hostile to stich involvement unless the inquiries
are law-connected.]

17 Sir Thomas Bingham, "Judicial Ethics" in Legal Ethics and Professional Responsibility,
Ross Cranston (ed.) (Oxford, Clarendon Press, 1995).
18 G.Drewry, "Judicial Inquiries and Public Reassurance" [1996] P.L. 368.
19 Committee on Standards in Public Life: issues & questions [London, H.M.S.O., 1994].
20 Report of the inquiry into the export of defence equipment and dual-use goods to Iraq and
related prosecutions [London, H.M.S.O., 1996].
21 Bloody Sunday.
22 Bovine Spongiform Encephalopathy [BSE.].

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The Scott Report was actively undermined by the former Government -
through leak and spin - the modern methods of character assassination. The
Executive by such political attacks, increases the danger of destroying the very
reputation for impartiality that judges need to perform their judicial functions:
and underscores the undesirability of their initial involvement in such non-
judicial activity.

Lord Saville - to take a contemporary example - is not only required to
investigate the correctness of the conclusions of an earlier inquiry by Lord
Widgery, the Lord Chief Justice, an exercise which by necessary implication
involves his predecessor inquisitor in criticism, but has himself been subjected
to judicial review in relation to his decision to refuse anonymity to army
witnesses.23

It is in one way admirable that Lord Saville's status as a Law Lord does not
save him from review when sitting in a non-judicial and subordinate capacity as
Chairman of an Inquiry. However} the spectacle of a High Court or even Appeal
Judge impugning his judgment is not calculated to promote confidence in the
hierarchy of tribunals; and the problem is compounded by the calls for his
resignation in the right wing press (broadsheet as well as quasi-tabloid)
attendant upon his initial defeat in the Divisional Court. His participation in his
important exercise, in my view, damages (though no fault of his own) his future
image as an impartial arbiter above the fray. And now the Hoffman defence has
intruded even into this sensitive area. The families of the deceased are
contemplating a challenge to the Court of Appeal's decision to restore
anonymity on the grounds that Lord Woolf, who presided, had served for two
years in the army on national service - although why this should necessarily be
thought to predispose him to the military is not by any means obvious.

The media, of course, are not slow to leap on bandwagons, even when they do
not set them rolling. Another by-product of Pinochet No.2 was an extraordinary
intrusion into and exposure of Lord Hoffman's private life - or a version of it.
Headlines in the press about "Legover Lennie" and "Lennie the Loin" may
sufficiently give the bitter flavour of the witch hunt. Ministers and M.P. s are
prevented by Parliamentary rules from attacking the character of judges?4 The
press labour under no such restraint, external or internal. The right of free
expression - the familiar justification - provides no excuse. The European
Convention on Human Rights itself qualifies such right by considerations of the
need to maintain "the authority and impartiality of the judiciary" (Article 10(2));
equally the various considerations listed in Article 8(2) which would override

23 R. v. Lord Saville of Newdigate ex parte A [1999] T.L.R. 290; R. v. Lord Saville of
Newdigate& others exfarte B & others [1999] 4 All E.R. 860.
24 Halsbury's Laws (4 ed.) voI.8(2) at para.303.

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the right to respect for private life do not appear to be in play in any way in the
case of Lord Hoffinan. There was, in short, no link between press punishment
and judicial error: the interest of the public and the public interest were fatally
confused. When Lord Atkin spoke in Ambard of the need for justice "to suffer
the scrutiny and respectful, even though outspoken comments of ordinary men,"
I doubt he would have had in mind something akin to Hoffmania25

The demystification of the judiciary is, of course, a phenomenon and by-
product of our age. The sugar coating to the burdens of office dissolves: the
pomp and circumstances depart. Cyril Hare in his 1930s classic, Tragedy at
Law, reminds us of the glories that were the old Assizes.

"A Rolls Royce of cavernous size purred at the door of the
Lodgings. The High Sheriff, faintly redolent of moth balls but
none the less a shining figure in the full-dress uniform of a
Volunteer Regiment long since disbanded, strove to bow
respectfully and to avoid tripping over his sword at the same
time. His chaplain billowed in unaccustomed black silk. The
Under Sheriff gripped his top hat in one hand and in the other the
seven foot ebony wand, sunnounted by a carved death' shead, ...
Behind, the Judge's Clerk, the Judge's Marshal, the Judge's
Butler and the Marshal's Man formed a sombre but not less
satisfying group of acolytes."

His Lordship's peevish complaint, "No trumpeters," reminds us that these were
times not only past, but perdu. I do not suggest that it is in any way necessary to
reconstitute the glories of a bygone age. I merely surmise that if judges lodged
in a motel, and lunched at McDonalds, people might be less prepared to accept
that the law still had any majesty, or the judges' rulings any authority.

If judicial independence depends in part on the illusion that judges were
different from the mere mortals whose fate was in their hands, the illusion is all
but shattered. The demands of the bureaucrats are rampant as in every walk of
modern professional life. As George Bernard Shaw might have said, - a little
unfairly it may be, - those who can do, those who can't regulate.

The civil service interpreting and applying Government policy, compel judges
to do less than full justice by taking account of considerations which extend
beyond doing right in the particular case. Only last week, Lord Justice Rose, no
silent spokesman for the judicial cause, warned that the recent proposals from
the Lord Chancellor's department for "planned work which begins at 9am and

25 Supra n.1 at 335.
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finishes not before 5pm," and for performance targets to be set had "very
serious implications which the authorities have not appreciated in relation to the
role of our independent judiciary." I am not a campaigner for judicial indolence
- although I suspect that those who have not participated in litigation have only
a shallow notion of the stresses involved for the professional players - judges as
well as advocates. But I do recognise that cases cannot be treated like guests on
the bed of Procrustes with portions lopped off at either end to suit the diktats of
some bureaucratic notion of an ideal timetable. No profession is ever
enthusiastic about regulation from outside; but the activities of, for example,
dons and doctors, who voice equal resentment, do not have a constitutional
dimension.

The tension is palpable. Lord Steyn said:

"They (judges) do not share the modem adoration of the deity of
economy, on the whole they put justice first."

A distinctive fonn of pressure upon judicial independence is a move towards
positive discrimination. Earlier this year the Labour Research Magazine
analysed 652 judges including the 85 appointed since the start of 1997 and
concluded that the majority were white males and largely the product of
independent schools and Oxbridge?6 Two celebrated campaigning solicitors
then wrote an article in The Times suggesting that this was unacceptable.27 They
argued that in environmental cases in particular "the judges natural instincts ...
are to protect property and the interests of the corporate world rather than those
of the ordinary citizen" - the opposite analysis, I note, to that conventionally
contained in the editorial columns of the Daily Mail.

I do not subscribe to the shallow view that evaluation of fact or analysis of
law is a robotic exercise; what, for example, a judge regards as a credible
explanation given by a witness for some event may be affected by cultural
considerations: what is or is not the appropriate legal principle to apply, and of
what it consists, may be so likewise. As Lord Hoffmann himself has said in a
recent speech: "[s]ince judges are also people, this means that some def,rree of
diversity in their application of values is inevitable.,,28 Many legal problems
have a range of potential solutions - Pinochet, I repeat, illustrates the point. But
although fact-finding is an important aspect ofthe judicial act, it is not
distinctively so. In England, after all, we conventionally assign to non-legally

26 Labour Research Magazine.
27 MarilynDay & RussellLevy, "Why Judges must declaretheir interests" The Times, 31 sl
August, 1999, but see the letter from BenedictBirnbergon 6th November, ]999.
28 Piglowska v. Piglowski []999] 3 All E.R. 632 at 644

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trained persons, lay-magistrates and jurors, fact fmding functions. The
distinctive quality of a judge, is knowledge of the law and its application. Such
quality is not particular to, nor dependant upon gender or race or social class.
But giving all due weight to such factors, it would be intensely damaging to
judicial independence if any factor other than perceived judicial merit were to
be the criterion for judicial appointment. As the Lord Chancellor himself has
put it: "[o]ur higher courts should not be sculpted to conform to some notion of
social, political, sex or any other balance.,,29 [I mention en passant that one of
the reasons why members of the bar may be well (if not uniquely) qualified to
be appointed to the bench on the basis of their previous professional experience
arises from the fact that years of acting, faithful to the cab-rank rule, as the
mouthpiece of the client, in the sphere of public law where 1 practise, sometimes
for citizen against government, sometimes for government against citizen, has
bred an habitual ability to see and appreciate both sides of any argument. The
necessarily correlative disadvantage, 1 should in candour add, is an inhibition as
to choosing between such arguments and an erosion of any sense of what is
right and what is wrong, as distinct from what can or cannot plausibly be
argued.]

I do not suggest that appropriate efforts should not be made, as they are being
made, to encourage applicants for judicial office from all sectors of the legal
profession, nor that it was other than entirely sensible for the Lord Chancellor to
appoint Sir Leonard Peach to review the whole system of judicial appointments.
But the Judge who owed appointment to positive discrimination would be the
prisoner of the circumstances of such appointment. The current gender and
ethnic imbalance in the judiciary reflects no more than the historic imbalance in
the Bar, the pool from which candidates from the Bench are overwhelmingly
selected. As the Bar broadens its intake (as it has done), so will a growing
number of women and ethnic minority persons ascend to the Bench. If the
constituency of potential appointees broadens - solicitors - even academics for
appellate positions - this tendency will be encouraged. It would be as unwise to
accelerate this natural and inevitable process as it would be to interfere with the
timetable of childbirth. It is only to spare their blushes that 1 decline to name at
least two women who, within fifteen years and two members of ethnic
minorities who within three decades, will surely be members of whatever
supreme court we then enjoy.

I draw an analogy from my experience at Oxford. The fact that the number of
independent school educated students at Oxford is disproportionately high,
occurs despite genuine and strenuous efforts to reach out to a wider world of

29 Speech to the Third World Common Law Judiciary Conference, Edinburgh, 5th July, 1999.
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applicants, not because of a desire to keep a closed academic shop. If critics
wish us to discriminate positively in favour of the under represented, they
should say so, and be prepared to debate the implications of that strategy. They
should not claim, fallaciously, that we ourselves are guilty of discrimination:
Refusal to discriminate positively is not itself discrimination.

I tum from the issue of who should be appointed - I shall return to the 'how'
later - to the issue of how they should be paid. A reasonable remuneration for
judges is in principle justified as a bulwark against the risk of corruption.
Mercifully the debate about the.Ievel of judicial salaries in this country needs to
take no account of that factor. But there are more subtle ways in which pay
issues intersect with issues of judicial independence.

At present judges are ranked in Groups from 1 to 7.2 Lord Chief Justice
through to District Judge and have their salaries uprated annually by statutory
instrument laid before Parliament. Account is taken of the recommendations to
the Review Body on Senior Salaries, who provide inter alia, "independent
advice to the Prime Minister and the Lord Chancellor on the remuneration of
the holders of judicial office." I am presently Chairman of the Judicial Sub-
Committee of that body, and indicate that nothing I say should be regarded as
other than provisional - indeed I raise questions rather than provide answers -
and certainly does not represent conclusions of the body itself.

But I note performance related pay is now common in the senior civil service:
it is due in the foreseeable future for the senior military.3D At sometim.e the issue
is bound to be posed. Is it feasible to introduce the same system for judicial
salaries? In such a system of performance related pay, judges within a particular
group could have a variety of salaries, reflecting (no doubt within bands) their
relative performances.

But there are a number of problems which would necessarily arise in the
context of any such scheme.

(a) By what criteria is judicial performance to be judged? Is a
judge's performance to be assessed by his throughput - the
number of cases decided? Or the extent to which his judgments
are appealed, unsuccessfully or at all?
(b) Who would exercise the judgment?
(c) (Critically) On the basis that such judgment could be
translated into pay differentials - a technical matter, no doubt as

30 Twenty-First Report on Senior Salaries of the Review Body on Senior Salaries, CmA245
(Stationery Office, 1999) at para 55.

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capable of achievement in this area as in others - what would be
the consequences for judicial independence?

None of these questions, I suggest, is susceptible of any easy answer. It can be
said cogently that the Lord Chancellor makes evaluations for promotion: that if
X is elevated to the Court of Appeal, it is on the basis that he or she is assessed
as a better candidate than Y, so that differentiation is not itself impossible.
Against that the impact on judicial independence of a division of judges, within
a single tier, into sheep and goats would have to be most carefully weighed. The
public might ask whether the favoured judges had not earned their salary spurs
by their amenability to the powers that be.

I have spoken so far of fetters imposed upon judges from without: I turn now
to judicial behaviour from within. Judges cannot be held responsible for many
aspects of the enhancement of their purely judiCial role - the accession to the
European Community, the enactment into domestic law of the European
Convention on Human Rights; the ascription of functions to the Privy Council
in consequence of devolution of policing the type of conflicts, familiar to the
judiciary in federal jurisdictions. But judges have also become authors of their
own misfortune, unnecessarily attracting accusations of overreaching
themselves, not showing that "judicial restraint," publicly proclaimed as a virtue
last week by the Prime Minister's wife.

Accession to the European Community gave judges legitimate power to set
aside Acts of Parliament as contrary to a higher law - an experience customary
for judges operating in a state with the written constitution, but alien to the
domestic judiciary since, in the 1ih century, Sir Edward Coke asserted a similar
power by reference to a higher order of natura/law. It was, however, unwise for
some Judges to assert, even if theoretically, a power to do the same merely
because the legislation offended against what they see as fundamental rights.
Lord Woolf] and Lord Justice Laws32 in particular have hinted that
parliamentary sovereignty may not be absolute.

Incorporation of the European Convention on Human Rights will give the
Judges legitimate power to invalidate executive action as violating its
provisions. It is, however, unwise for some judges to proclaim that they should
make judgments as if the Human Rights Act were which, by design it is not,
already in force.33

31 ["Droit public - English style" [1995] P.L. 57
32 "Law and Democracy" [1995] P.L. 72.
33 R. V. D.P.P. ex parte Kebilene[1999] 3 W.L.R 175, [C.A.], but see [1999] 3 W.L.R 972,
[H.L.]; R. v. Governor of Brockhill Prison ex parte Evans (No.2) [2000] 3 W.L.R 843; R . .y.
North & East Devon Health Authority ex parte Coughlan [2000] 2 W.L.R 622.

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Judicial review provides a salutary discipline against abuse or misuse of
executive power. It is, however, unwise for judges to proclaim themselves as
consciously filling a political vacuum left by an ineffective opposition.34

It is sensible that judges have sloughed off the barren literalism of traditional
methods of statutory construction in favour of a purposive approach which
seeks to discern the true intent of the legislation. It is, however, unwise for
judges to seek to impose - and avowedly so - their own values upon a legislative
framework so as to reach results which the legislature would never have
contemplated, and which, had it contemplated them, it would surely have
opposed. The areas of treatment of refugees and of prisoners serving life
sentences provide a wealth. of illustrations from recent law reports.

Ultimately, it must be accepted that judges lack democratic legitimacy. As
unelected persons it is not their role, except where compelled to do so, to
subvert the sovereignty of Parliament. The more involved in political issues
they become, the more important it is that they should be then seen to be non-
political.

This then engages the question of the infringement of separation of powers in
our historic constitution, the relevant part of which, the House of Lords, is under
scrutiny by Lord Wakeham's Royal Commission.

In my view, irrespective of either the personal qualities of the individuals
involved, or the contributions that Law Lords can make to the legislative (and,
in the case of the Lord Chancellor, also the executive process) in an era when
the judicial function has become inextricably involved in politics, it is no longer
appropriate that judges should police laws in whose making they have a
constitutional role.3536

The overriding disadvantage, in my view, of the possession of membership of
Parliament, on the one hand, and judicial functions on the other, relates to the
appearance (as distinct from actuality) of judicial partiality - and consequent
confusion in the public mind about the role of judges. Judges must not only be
independent, but be seen to be independent; they should fulfil - and be thought

34 Lord Woolf Neile Lecture.
35 "If the judiciary is to act as an effective check on overweening Government, it should be
untainted by direct involvement with the legislative or the executive." The Economist, 16th

December, 1995. See also D.Pannick Q.c., "When legal and judicial functions no longer
mix" The Times, 7th June, 1999.
36 In the 1870s, the intention of the reformers, Lords Cairns and Selbourne, had been to end
the role of the House of Lords as a judicial body, as well as the Judicial Committee of the
Privy Council. In place of these two would be an aggrandised Court of Appeal, known as the
Imperial Court of Appeal, sitting in the new Law Courts to be built in the Strand. It was only
by the 1876 Appellate Jurisdiction Act that the House of Lords had its appellate power
restored.

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to fulfil - the aims of the judicial oath "without fear or favour affection or ill
will." If judges are members of a political institution, the perception of their
necessary independence from the political process is blurred.

When the Fire Brigade case37 which involved the then Secretary of State,
Michael Howard's, proposals to make cuts in the Criminal Injuries
Compensation Scheme came on before the Appellate Committee it was difficult
to find five Law Lords to sit judicially, since so many of them had already
spoken out, in debates and elsewhere against the proposal. (And had they
spoken out in favour, the problem would have been equally visible and actually
worse, since judges should not appear to be creatures of the other branches of
government.) The fact that the Law Lords split three-two with the minority
suggesting that the majority were trespassing into the province of the legislature
underlined the danger of the status quo.

Constitutional conflicts of interest seem to me to provide a far greater cause
for concern than personal ones. Section 13 of the Defamation Act 1996 was
introduced by way of amendment by Lord Hoffmann to rectify the position by
which an M.P., who chose to sue for libel a newspaper who had impugned his
Parliamentary conduct, could have his action dismissed because the newspaper
could not, on account of Article 9 of the Bill of Rights, defend itself by
justifying its allegations, by referring to proceedings in the House, with the
result that a fair trial was impossible. But how far Section 13 entrenches upon
Parliamentary privilege is a moot point; and fell for decision earlier this month
when the case of Neil Hamilton v. Mohammed Al Fayed reached the House of
Lords.38 Would it have been possible for Lord Hoffmann to sit and determine
the objective meaning of Section 13 when he had, no doubt, a fixed subjective
view about its purpose?

I tum to the position of the Lord Chancellor, that earthly three-in-one, with
some trepidation since I stand in the very room where he made his notorious, if
humorous, comparison of himself to Cardinal Wolsey. He is not only the senior
judge, and the head of the judiciary in England and Wales. He is also a
politician who serves in the Cabinet and has a responsibility for a major
executive and spending department.

The Lord Chancellor's involvement in politics has an unavoidable effect on
the assessment of the independence of his judgments. Lord Chancellors may sit
less frequently than they once did (in the same way as Attorney-Generals appear
far less in Court as advocates for the Government than they did). But when they
do sit, their role is compromised. It may have been coincidence that in Pepper

37 R. v. Secretary of State for the Home Department ex parte Fire Brigades' Union [1995] 2
AC.513.
38 Hamilton v. Al Fayed (No.1) [2000] 2 w.L.R. 609.

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v. Hart,39 (which established that, within limits, ministerial statements in
Parliament were legitimate aids to construction of statutes) Lord Mackay
dissented on the pragmatic ground that resort to such grounds would increase
the cost of litigation.40 Was it the judge who spoke or the politician, Cabinet
colleague of the Chancellor of the Exchequer?41 More important would the
public be convinced that it was the former, not the latter?

Lord Irvine has sat equally sparingly but one of his two (so far) reported cases
concerned the right to use the highway for protest, a sensitive issue with
obvious political overtones42 and one whose legally controversial nature was
exemplified by the three-two split in the House. The Lord Chancellor ought
sensibly to be ruled out of membership of the Appellate Committee whenever,
for example, a decision of a Cabinet colleague is under challenge. But what if it
were a decision of a local authority? Would it make a difference if the authority
were of the same (or different) political stripe to that of the Lord Chancellor?
The moment it is appreciated that the boundary lines between the indefensible
and defensible are not fixed, but fluctuating, pragmatism as well as principle
suggests that it is better (and simpler) for the Lord Chancellor not to sit at all.
Given that even a Lord Chancellor with the legendary energies of the present
incumbent has only been able to sit .twice in two years suggests that the sacrifice
involved is more formal than real. Lord Irvine does not, however, accept that he
is hors de combat even for constitutional cases,43 and even with his back .to the
wall - I do not say wallpaper - has made throughout the year a formidable, but I
believe ultimately unpersuasive case, for retention of the plurality of his powers.

The European Commission of Human Rights has ruled that the position of the
Bailiff of Guernsey, who, in a smaller world by far than that in which the Lord
Chancellor holds triple sway, has legislative, executive and judicial roles,
violates, if he sits judicially, Article 6 of the European Convention on Human
Rights (itself scheduled to the Human Rights Act 1998) which guarantees, inter

39 [1993] A.c. 593.
40 Ibid at 615.
41 Lord Steyn in "The Weakest and Least Dangerous Department of Government" [] 997]
P.L. 84, makes a more general point about the way in which the Lord Chancellor's
compromise by collective responsibility at a time of financial stringency: "The Lord
Chancellor as a Cabinet Minister represents the voice of reform guided by the Treasury
perspective. The view of the Judge is rather different. They do not wholeheartedly share the
modern adoration of the deity of economy. On the whole they put justice first."[at p.91]. See
also Sir Nicholas Browne-Wilkinson Vc., "The Independence of the Judiciary in the 1980s"
[1988] P.I. 44 at p.50.
42 D.P.P.v. Jones [1999] 2 W.L.R. 625.
43 Supra n.29.

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alia, "an independent and impartial tribunal. ,,44 If the European Court of Human
Rights (which has recently heard the case) reaches the same conclusion - and
the matter is presently under consideration - reform may be the only option.45

I confess that I reach these conclusions without relish. I do not believe that
nations with a long history of evolving democratic government should lightly
discard traditions or images which have served them well. A sense of history,
even a soupr;on of ceremony, is no bad thing. If I may adapt what Oliver
Wendell Holmes said about the law, the life of constitutions is not logic, but
experience. Rules often matter less than practice; convention and compromise
have valuable roles. But if perceptions of the essence of justice have become
more sensitive, then the institutions which provide that justice must adapt to
those perceptions.46 .
Ireturn lastly to the question of judicial appointments. The statutory

protection of the higher judiciary against arbitrary dismissal or diminution in
benefits because of offence caused to the Government of the day contrasts
vividly with the fact that though in form the Queen's judges in substance they
owe their appointment to the Government, the Lord Chancellor, or in the case of
the Law Lords the Prime Minister acting inevitably on his advice, which allows
for political calculation to inform the minds of the appointer, though not the
appointed.

There are, it must be recognised, nowadays no more appointments as a reward
for political service. At the start of the century, membership of the Hc;>useof
Commons was often seen as a springboard to judicial office. By its end even the
reversionary right of the Attorney-General to the Lord Chief Justiceship, indeed
to any judicial post, had long since atrophied. The reasons lie partly in the
inability of anyone any longer to enjoy a career in politics simultaneously with
a career in law of sufficient distinction to make an appointment to the bench
credible: partly because of an increased scrupulousness in the Lord
Chancellor.47 However, the fact that the power is not abused does not mean that
it is not capable of abuse: nor can it eradicate the perception for potential abuse.

No judges rightly stand higher in the esteem of their colleagues, the profession
and the public at large than Lord Bingham, the Lord Chief Justice, and Lord
Woolf, the Master of the Rolls; but it is not without interest that each ranks

44 Richard James Joseph McConnell v. The United Kingdom (Application No.28488/95)
faras.56-57
5 The Court upheld the finding of a violation in its decision of 8th February, 2000. See The
Times 22nd February, 2000; 8 B.H.R.C. 56; & [2000] PLR. 69. See also the Scottish case of
Starrs v. Ruxton 2000 S.L.I. 42; [2000] H.R.L.R. 19l.
46 Lord Steyn, supra n.41 at p.9l.
47 See Lord Bingham of Cornhill, L.C.J., "Judicial Independence" Annual Lectures JSB 1996.

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among the handful of judges who were actually supportive of the Mackay and
Irvine legal reforms; nor that Lord Justice Rose, the judges' candidate for the
office of Lord Chief Justice on the untimely death of Lord Taylor, had been an
outspoken critic of the then Home Secretary's sentencing proposals as well as
having suggested that some female appointments to the High Court bench owed
more to a policy of political correctness than of selection on merit.48

[In December, 1973, when Sir John Donaldson, a High Court Judge was
sitting as the first President of the Industrial Relations Court, 187 Labour M.P.s
called for his removal for "political prejudice and partiality." Donaldson ended
his career as Master of the Rolls, but not until there had been a change of
administration.49 What was unpalatable to the Labour M.P.s, was appetising to
Mrs. Thatcher.]

Lord Steyn has suggested that separation of powers can only be ensured if the
Lord Chief Justice is head of the judiciary. 50 One might logically add (though
Lord Steyn does not) ifhe - or she. - appointed the judges. I doubt, however, that
such a bird would fly. On the contrary, any move is likely to be in the other
direction; Lord Patten, the fonner education Minister, has already suggested that
in so far as the judicial role has become objectively politicized, so the elected
politicians must have a role, like Congress in the United States, in appointment
of the judges? The leader of the Conservative Party, William Hague, has
developed that thought to its logical conclusion by caliing for a House of
Commons' veto on senior judicial appointments. 52 Dr. Liam Fox has suggested
that newly appointed candidates should appear before a new joint committee of
both Houses of Parliament where his or her views could be sought on a range of
political and legal matters.53

Any such schemes would be the fatal blow to the independence of the
judiciary. That our potential judges should be Borked and Thomassed will add
to the haemorrhage of talent which the High Court bench is already sustaining.
Lord Browne-Wilkinson, the Senior Law Lord, will apparently say in an
interview in The Times tomorrow that while willing to sacrifice several million
pounds of income in advancing from Bar to Bench, he would not have accepted
office if he had had to undergo such a cross-examination. I cite only the most

48 J.Rozenberg, Trial of Strength: the battle between ministers and judges over who makes
the law (London, Richard Cohen, 1997)
49 He was appointed Master of the Rolls in 1982, as Lord Denning's successor. Mrs
Thatcher's government came to power in 1979.
so Supra n.41 at~. 91
Sl The Times, 16 March, 1999.
S2 The Times, 25th February, 1995.
S3 Dr. L.Fox, Holding our Judges to Account (London, Politeia, 1999).

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notorious recent examples of Congressional inquisition, which were fuelled by a
heady cocktail of political partisanship and political correctness, so that one
nominee was never appointed and the other is a maimed presence on the Bench.
Indeed, as disquieting as the treatment meted out to such nominees, is the
reason why they were nominated, that is to say, to sustain a particular
philosophical majority on the Supreme Court Bench. The U.S. Supreme Court
bench contains judges of surpassing ability; but their method of selection is
something which should not lightly be transplanted. In my view, it is even less
acceptable that nomination should be the plaything of a multitude of elected
politicians than that it should be the perquisite of a single unelected one. I
would prefer some form of appointments commission, 54 whose membership and
whose functions should be legislatively defined so as to ensure that merit alone
was the touchstone of elevation to the bench. I appreciate that it will be asked:
Quis custodiet ipsos custodes! Who will appoint the appointers? And that this
will only remove at one stage potential political influence in appointment. But
there is no perfect solution. What is important is that my proposal increases not
narrows the distance between the politicians and the judiciary. Accountability -
the favoured buzz word of those who take the other view - is in my view, a
euphemism for control. From my perspective the virtues of an appointments
commission is not that it exposes judges to, but that it protects them from, the
excesses of democratic or popular selection.

Lord Atkin had strong belief in the separation of powers between executive,
legislature and judiciary. Like Lord Denning, several of his most memorable
judgments upholding the rule of law, were dissents, more valuable for the
principle they asserted than the precedent they set.55 Liversidge v. Anderson, the
subject of two distinguished Atkin lectures, being the best known example.

But in a private letter to Sir Herbert Evatt written in 1940," Atkin touched a
broader chord:

54 G.Drewry, "Judicial Appointments" [1998] P.L. 1; N.Addison, "How Canada can help
choose Judges" The Times, 30th March, 1999.
55 See Wankie Colliery Co. v. I.R.C. [1921] 3 K.B. 344 at 365. What he said in Liversidge v.
Anderson, [1942] A.C. 206, the subject matter of two Atkin lectures, is a published classic.
But equally vibrant is his observation in Wankie Colliery Co. v. I.R. C. where he described the
Crown's contention that excess profits duty would be levied on owners in respect of profits
made by their predecessors as one which "would exceed the wildest dreams of the most
imaginative high prerogative lawyers in the very worst time of our history." [at 365]. In Ford
v. Blurton (1922) 38 T.L.R. 801 - "many will think that at the present time [1922] the dangers
of attack by powerful private organizations or by enchroachments of the executive is not
diminishing."[at 805] - words not less applicable in 1999.

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"How little the public realise how dependent they are for their
happiness on an impartial administration of justice. I have often
thought it is like oxygen in the air: they know and care nothing
about it until it is withdrawn.,,56

I have sought to ventilate my own concerns in this historic club to a more
sentient and sophisticated sector of the public.

If my lecture has been more patchwork quilt than monochrome cloth it is
because the concept of judicial independence admits of no solitary or
universally accepted definition. But we can legitimately seek to preserve and
protect that which we cannot precisely describe. I fervently hope that the
enemies of independence that I have identified can be kept at bay; and that all
four estates of the realm (for I will accept the media into that category in terms
of actual, if not legal power), but also the wider public will recognize the value
of judicial independence, and strive to diminish the dangers to it. It is not in the
people's interest to have the people's judges.

56 Quoted by Geoffrey Lewis in Lord Atkin (Butterworths, 1983) at p.222.
172