Judges too keen to use Human Rights Act powers, says Lord Neuberger

The UK judiciary has become a little too enamoured of its powers to challenge the government as a result of the Human Rights Act, according to the Master of the Rolls, Lord Neuberger.

The head of the Court of Appeal told the eighth hearing of the Lords Constitution Committee into judicial appointments that the relationship between the judiciary and politicians had been changing since the end of the Second World War with “a greater preparedness on the part of the judiciary to review and interfere with decisions of the executive”. This was in part to do with “judicial activism” but more due to the increased power of the executive coupled with, in the last 10 years, the influence of the Human Rights Act. “That in one sense has increased the judicial power and obligation to interfere with executive decisions when they go wrong. But it has also introduced a new aspect in the relationship between the judiciary and Parliament.”

This was a matter of degree rather than principle since judges had not been given power to overturn statutes or declare them unconstitutional, merely declare them incompatible with the European Convention on Human Rights.

“There is an argument that the judiciary, having been given this new power under the Human Rights Act, have become a little too enamoured with it, too keen to exercise it because it is a new power, and it may be that, as things settle down, the judiciary will pull back a bit from what it has been doing.” His instinct was that there would be “a slight retreat” by judges over the next 10 years.

Tie-breakers

The hearing concentrated largely on the issue of judicial diversity and how it might be encouraged through appointments procedure. Committee members were particularly interested in whether “positive action” (as opposed to positive discrimination) as envisaged in the Equality Act 2010 could be used to promote judicial diversity in “tie-break” situations.

Section 159 of the Act (the relevant parts of which are below) envisages a situation in which two or more candidates for a job are found to be equally qualified and a decision is made to prefer a candidate with some aspect of diversity lacking in the organisation – known as “protected characteristics” in the Act. (This issue was considered at an earlier committee meeting, here).

Committee member Lord Pannick said it was difficult to believe two people could be exactly equally qualified but might it be possible, if they had achieved the high standards required, to then take account of the needs of the judiciary to have more women or members of ethnic minorities – just as one might decide one needed the expertise of a commercial lawyer or a human rights lawyer?

You have to look at those who may not have had the same advantages and hadn’t had the same facilities and to see whether they have, not just the same potential, but perhaps even better potential – Lady Justice Hallett

Lady Justice Hallett, Court of Appeal judge and former vice-chair of the Judicial Appointments Commission, said she was a late convert to such positive action as a result of here experience with the JAC. She did not think it was as rare as people thought to find candidates who were equally qualified; they might be qualified in different ways, for example, and Section 159 could be a useful way to promote diversity.

Neuberger had been reported earlier in the week as favouring just such an approach and reaffirmed that he had no problem with Section 159 applying. “Equality of fitness for appointment is a very difficult, very subjective assessment. Some people believe very strongly you can work out in every case whether one person is better than another. I am not of that view … You very often find yourself in a position where you have two candidates who are in your view equally strong.” A difference of 10 or 15 per cent between them would not be significant. “I think therefore that Section 159 has a serious role to play.”

But he added: “I would be concerned about saying that once you have candidates all of whom pass the test, that you should then favour the woman, the ethnic minority, the gay if they are under-represented.”

Since his comments he had been criticised by barristers and others saying “from their perspective it’s patronising”. Women and ethnic minorities wanted to feel they got there on merit. “We have to keep merit as the guiding factor. It’s not the same thing saying women are under-represented as saying human rights experts or commercial lawyers are under-represented.”

Hallett pointed out that it was matter of how you apply merit, not redefining it. In the past it was very much those who had won the glittering prizes or produced the great academic work. “But you have to look at those who may not have had the same advantages and hadn’t had the same facilities and to see whether they have, not just the same potential, but perhaps even better potential.” Too often those appointing looked at those who followed similar paths to themselves.

She believed there was a problem for women with caring responsibilities who do not want to go on the bench because the work is intensive. “The default setting is now frenetic,” she said.

Neuberger felt that those in leadership roles were not doing enough to promote diversity. In the old days appointments were made by the tap on the shoulder by senior judges. “We should be able to tap people [of diverse backgrounds] on the shoulder and say ‘you should apply’.” Such recommendations should then carry weight with the Judicial Appointments Commission.

Asked whether it would be a good idea to set targets, for example, for the number of women in senior positions, Hallett said it would be possible only if the pool of qualified women was large enough at the senior level.

“At the moment you could set a target but your pool’s not going to be big enough to meet your target. You would only meet your target by reducing the merit criterion, diluting it in some way.”

 Note: All previous Lords Constitution Committee meetings in this series on judicial appointments have been reported on Alrich’s Weblog. The seventh session with Baroness Hale is here.

This eighth hearing is web-streamed here

Lord Neuberger’s 2009 speech on the theme of the Supreme Court becoming a constitutional court is here (pdf)

Equality Act 2010 Section 159

Positive action: recruitment and promotion
(1) This section applies if a person (P) reasonably thinks that—
(a) persons who share a protected characteristic suffer a disadvantage connected to the characteristic, or
(b) participation in an activity by persons who share a protected characteristic is disproportionately low.

(2) Part 5 [of the Act] (work) does not prohibit P from taking action within subsection (3) with the aim of enabling or encouraging persons who share the protected characteristic to—
(a) overcome or minimise that disadvantage, or
(b) participate in that activity.

(3) That action is treating a person (A) more favourably in connection with recruitment or promotion than another person (B) because A has the protected characteristic but B does not.

(4) But subsection (2) applies only if—
(a) A is as qualified as B to be recruited or promoted,
(b) P does not have a policy of treating persons who share the protected characteristic more favourably in connection with recruitment or promotion than persons who do not share it, and
(c) taking the action in question is a proportionate means of achieving the aim referred to in subsection (2).