Who do these guys think they are?
Judges have made themselves darlings of the left for repeatedly challenging the Government, but are they really fit to play politics? David Walker reports
Wednesday 17 April 1996
A press photographer caught him dressed to the nines in hunting garb on the back of an Irish mare about to go fox-hunting. The Tom Paine of the High Court was suddenly exposed as a rich man spending his leisure as such folk do.
Last summer there was a fuss after the discovery that judges hearing cases at Lewes Court were put up in a mansion nestling in the Downs at Telscombe. The judges were bemused. Opulent stone manor houses are, after all, where many of them live.
High court judges earn pounds 103,000 a year plus perks. The upper ranks of the judiciary, from High Court judges up to Lords of Appeal, are all white and (bar eight) male. Four out of five were educated at Oxbridge. A guestimate is that nearly nine out of 10 attended a public school; if not, they went to a direct grant or good grammar. Judges are not, in the words of the judicial oath, "all manner of people".
Officially, that makes no difference. The Lord Chancellor's Department gave evidence to the House of Commons home affairs committee in February: "Whatever their social background, almost all candidates in the course of lengthy experience in legal practice will have become familiar with social conditions and behaviour in many and diverse situations."
There is a case for toff judges: they will have the confidence to beard their social equals. Simon Lee, author of Judging Judges makes the point diplomatically. "Perhaps aloof judges are more likely to take a counter- majoritarian position. Unrepresentativeness doesn't preclude understanding or a commitment to rationality."
The problem is that their rationality is called into question when they hand down sentences that appear inappropriate or make remarks that reveal what appears to be deep-seated ignorance of everyday life. Then the argument is that they would make better decisions if they were more representative.
Both the Lord Chancellor, who now advertises to recruit some judges, and the Bar Council, representing the barristers from whose ranks all senior appointments are made, want things to change.
The compulsory vocational course for intending barristers formerly offered only in the Inns of Court in London is now available elsewhere. The Bar Council this week publishes a new equality code. A clearing system operates for entry into barristers' chambers which, in principle ought to make it easier for those without connections to make it in the law.
It's not quite a legal revolution. Of 8,390 practising barristers 282 are self-identified as black. There are 61 women QCs, up from only 50 two years ago. (There are 957 male QCs, up from 845 two years ago.) The pool from which future judges will come is broader but only by a little.
There are good reasons why the social background of the judiciary matters. One is that holders of power and authority ought roughly to match society at large in their composition; anything else could look a recipe for exclusion and oppression.
For judges this has become a more pressing question as their role has become more politically controversial: they are doing things that require them to be more representative. This was what the Lord Chief Justice, Lord Taylor of Gosforth, was getting at when he said that if the judges are going to get into public debates through the media they need to be more in touch. The implication, given Lord Taylor's own only slightly non-standard background (Newcastle upon Tyne Royal Grammar School, Pembroke College, Cambridge), could be that judges need to be more like the rest of us.
There is a groundswell of opinion in favour of judicial activism, with judges reviewing more government decisions by government ministers. It is because judges are being drawn on to this political terrain that Lord Taylor has given given his colleagues the green light to hold press conferences and make public speeches.
The judges' repeated clashes with government and Michael Howard, the Home Secretary, in particular, have made them the darlings of the political left. The bible for the left used to be John Griffiths' The Politics of the Judiciary, which linked a series of anti-Labour court decisions in the Seventies with the socially restricted background of judges in the the higher courts.
The left's problem is that judges are still toffs but are now knocking down Tory government decisions. That show of independence seems to support Lee's argument that their background makes them beholden to no one.
There may be a fallacy in the argument that a bench with more women and more comprehensive school-educated judges will, as a result, be more "liberal".
"Look at working-class magistrates, they tend to be authoritarian," says the David Downs of the London School of Economics. "Black magistrates are harder on black defendants."
Unrepresentative as they are, judges have been changing their courtroom body language. The bench, experts say, is unquestionably more modern and more open, even if its occupants still live in country houses. Sir Harry Woolf, Sir Stephen Sedley, Lord Browne-Wilkinson are widely regarded inside and outside the courts as class acts.
"A judge's background matters far less than their skills in judicial reasoning," according to Professor Geoffrey Jowell of University College, London. "What is different is, for example, the degree of interaction that there now is between English judges and the jurisprudence of other countries. They are in touch."
Consensus says that judges are doing what they do better than ever. The problem is that what they are starting to do is different, as it has to do with politics and decisions that in the past were reserved for those elected to public office.
"The issue is, how appropriate it is for judges to exercise political power," says Conor Gearty, reader in law at King's College, London. "But the solution to that problem is not to ensure there is a woman, a Catholic, a Sikh or a black person on the bench. It does not matter how representative judges are if what they do undermines the democratic process."
So you want to be a judge ...
Age: You would be wise to have a few grey hairs before trying to cover them with a long curly wig. The average age of Heads of Divisions is 63; Crown Court judges are more than 57 years old on average.
Race: Those from ethnic minorities shouldn't hold their breath. All 96 High Court judges are white. Out of 524 Crown Court judges, there are three Asians, two other non-whites and no blacks. It's a wonder the Commission for Racial Equality doesn't look into the judiciary.
Gender: If you're a woman, you could always hope. But it is largely a boys' club. There are no women among 12 Lords of Appeal in Ordinary and five Heads of Division. One woman figures among 32 Lord Justices of Appeal. There are seven women out of 96 High Court judges and 29 women among 524 Crown Court judges.
Education: Non-Oxbridge? Fear not. The breeze of change is gently blowing here. Half the Crown Court judges have non-Oxbridge backgrounds. On the other hand, the High Court judiciary is nearly 80 per cent Oxbridge. Make Lord Mackay your role model; he was 100 per cent non-Oxbridge - for his first degree, at least.
Pay: This may come as a shock, especially if you were previously a high- flying solicitor or barrister. Brace yourself as your salary topples to pounds 75,978 for Crown Court duties. Become a senior circuit judge and it rises to pounds 88,266. You can afford to loosen your belt a little as a High Court judge (pounds 103,425). The best you can hope for (as Lord Chancellor) is pounds 132,906 and the grateful respect of the nation.
Perks: Don't expect enormous bonuses or share options. But do expect a justice's clerk (secretary), a lovely big black car and driver to take you to the court, about five months' break each year, the security of knowing that no judge has ever been sacked, a reasonable pension, and the chance of a gong on retirement. If you are doing your judging away from home, you can also look forward to being put up in one of the luxurious judges' lodgings dotted around the country. Lord Mackay has his eye on spending these days, but in 1994 the taxpayer spent pounds 3,303 per judge per week on lodging costs.
Ben Summers and Ramola Talwar
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