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Michael Keightley

Judicial Diversity: A Gradual Process

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1 March, 2014
Law & Equality, Law & Practice, Michael Keightley, North East Law Review Blog Competition
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The-11-judges-sworn-in-fo-001

Image Source: http://static.guim.co.uk/sys-images/Guardian/Pix/pixies/2009/10/1/1254436575766/The-11-judges-sworn-in-fo-001.jpg

– Michael Keightley (LLB Law, Newcastle University) [email protected]

First of all, it makes sense to start with some important statistics regarding judicial diversity in the last twelve years. Starting from April 2001 the percentage of women in the judiciary has increased from 14.1% to 24.3% by April 2013, with those of an ethnic minority in the judiciary increased from 1.9% in April 2001 to 4.8% in April 2013. This is a gradual increase over the past twelve years, but that is only a general average. Baroness Hale raises some more specific, and less positive, statistics: “only 26.6% of the upper tribunal judiciary are woman, though 11% are BME” and no BME or women are sitting as Court of Appeal judges, Heads of Division and there only one woman in the Supreme Court, which is Baroness Hale herself.

All of which begs the question: why is there such a lack of diversity in the judiciary? And does diversity even matter?

The lack of diversity is, obviously, a poor representation of the general population. Considering the judiciary are empowered to adjudicate upon and enforce constitutional principles, then they should both represent and uphold constitutional principles of diversity and equality. The duality between the representation of values and the upholding of values is crucial to the question of whether or not diversity in the judiciary really matters.

It is mere common sense that the judiciary should represent the constitutional principles they aim to enforce, or face the label of hypocrisy, with principles of equality and diversity being at the forefront when you consider the secular and diverse nature of the United Kingdom. However, what is more important than the face-value representation of equality and diversity is the enforcement of equality and diversity. For example, if there was a candidate for the position of a judge then merit would be the obvious primary influence upon the choice over gender or ethnicity. This is reflected in s.63 of the Constitutional Reform Act 2005, which states that selection must be based on merit and ‘good character’. However, considering the current lack of diversity in the judiciary, if two candidates were of equally ‘good character’ and one was a female of an ethnic minority and the other was a white male, it would be the constitutional duty of the selecting body to enforce the principles of diversity and give priority to the first candidate to promote judicial diversity. Sadly, the lines are not that clear-cut and the situation is simple in theory alone. But generally it is easy to conclude that even though both the representation and enforcement of equality and diversity are important, they are not of equal importance.

Although, this view is quite basic as it fails to consider further implications of a lack of judicial diversity and merely assumes that judicial diversity has no implications beyond that of the face-value representation in the courts. Keith Vaz, MP, argues the important point that “a more diverse judiciary would bring different perspectives to bear on the development of the law and to the concept of justice itself.” It would be nonsensical to ignore the fact that somebody’s social background can influence the development of the law; and that a diverse set of backgrounds is likely influence the development of the law in a more positive manner. It is important to recognise that generations of females and people from ethnic minorities may have “broken the glass ceiling, but to make this achievement worthwhile others have to follow and do better.” Both democracy and justice are perpetually evolving concepts, yet they will fail to develop at a satisfying rate if the judiciary that interprets and enforces the law does not do that to a standard that runs parallel to the standards the public expects. Thereby leading only to a serious risk of undermining public confidence in the courts if the judiciary is not diverse.

The problem itself needs to be traced back further than just to the selection process of the judiciary. There is a much more representative amount of both women and ethnic minorities graduating with degrees, with women often outweighing men in most universities. Not to mention, for law students, there are schemes offered by The Law Society offering various scholarships, the most relevant of which is the Diversity Access Scheme. This scheme helps provide financial assistance to those who have faced exceptional obstacles in the course of gaining a professional qualification and are wanting to fund their year doing the LPC or Bar. On the surface it appears that there is encouragement of diversity and the promotion of equality at a basic level. But somewhere in between university graduates and the judiciary members there is a significant dip in representation.

This leads to the conclusion of two broad theories. The first being that there is a lack of diversity within the judiciary because there are still structures such as the Old Boy’s Network that exist and consequently encourage the white, middle-class male figure to dominate the judiciary. The second, being the more positive theory, which is that the diverse nature of the judiciary is simply yet to fully develop as there have been developments in diversity; with 1.9% of the judiciary from an ethnic minority and 14.1% female in 2001, which has gradually increased to 4.2% and 22.6% respectively. There may be a simple answer for the lack of diversity and it is impossible to force such diversity to happen overnight.

This, by no means, an attempt to promote positive discrimination in order to improve the situation – which has actually been suggested as a strategy by Police Minister Damian Green to remedy the unrepresentative percentages in the police force (27.3% of police offices being female and 5% being from an ethnic minority) – such a consideration would undermine both the ideals of meritocracy and the genuine skill that the current members of the judiciary hold.

But when “an analysis of almost 13,000 case files found that the CPS was more likely to object to bail for male African Caribbeans (13.2%), compared with white men (9%)” then there is a genuine concern in the public over equal treatment; and this concern would likely see improvement if the judiciary that attempts to enforces such equality was more representative.

It is unclear whether there is a direct link with the enforcement of justice and the diversity of the judiciary, but what is and has always been clear, is that to not have (or not attempt to develop) a diverse and representative judiciary not only undermines public confidence, but undermines the equal justice that is being enforced. It is logically and obviously a constitutional issue when the public are not represented by the judicial bodies that are meant to assist them.

Prisoner’s Voting Rights: Constitutional Implications at their Finest

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19 January, 2014
EU, Human Rights Law, Michael Keightley, North East Law Review Blog Competition
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A prisoner

(Image Source: http://www.theguardian.com/politics/2013/oct/16/votes-prisoners-supreme-court-rejects-appeal)

– Michael Keightley (LLB Law, Newcastle University) [email protected]

The European Court of Human Rights (ECHR) ruling that embodies more than the question of prisoner’s rights to vote in the UK is the case of Hirst v United Kingdom ((2006) 42 EHRR 41, [70]). It was a ruling that sparked controversy in 2005 and has set an eight-year resistance against a ruling that has been followed by an incredible 2,354 ‘clone’ cases of people claiming an infringement of their human rights – thereby forcing the question ‘should prisoners be allowed the vote?’

Regardless of your answer it is easy to see that, in principle, a blanket ban is somewhat immoral. It seems unconstitutional to withhold a right that is crucial to the continuation of democracy from a group of people only on the basis that they are part of that group. Arguably, comparisons can be made to the mistreatment of people based on their gender, race, or belief; if it is immoral to unequally treat people based on such groupings, then is it not immoral to disenfranchise prisoners?

These examples, however, are incredibly general and do not follow similar patterns to the disenfranchisement of prisoners. Take someone’s gender and race, obviously these are dependent upon biological circumstances, as opposed to an active decision. Beliefs are born from socialisation, which can influence action – but people are imprisoned for actions against the state, not the beliefs that may or may not influence that action. Prisoners are sentenced for their actions against the state and consequently are, as a group, disenfranchised for those actions. Allowing prisoners the right to vote in the democratic society that they have committed a crime against undermines the idea of taking responsibility for one’s actions – with civil responsibility being crucial in the structure of a healthy democracy, undermining such a concept is counterproductive to the sustainment of democratic principles.

Outside of constitutional and moral considerations are the wider implications of the European Union (EU). The financial implications seem to be the first at hand as the Strasbourg court could issue orders of compensation as a result of this failure to follow the ruling of the UK courts; seen as though no damages have been awarded in such cases previously, it is open to theory and contemplation as to what financial loss this could cause the government and the taxpayer. Say, for example, if a mere £1,500 was awarded in compensation to all 2,354 prisoners; the government would suffer a loss of £3,532,500 in total (not including court fees). Dominic Raab, Tory MP, simply argues “the Strasbourg court can’t force Britain to give any of these prisoners the vote, let alone compensation.” He then goes on to say that it is a matter of “democratic principle” to let Parliament make such a choice – however, Parliament have been delaying this crucial decision for eight years, surely now is the time for the EU to step in? Regardless of whether or not Raab is correct, defying the issuing of compensation from Strasbourg would hardly benefit the current tenuous relationship that the UK has with the EU. With murmurs of referendum from the Conservatives, shouts of independence from UKIP, and a plethora of statistics scattered across the web stating the consequences of being remaining in the EU the pressure only mounts for action to be taken.

But by blatantly ignoring the ECHR ruling for eight years are we not – in the words of Dominic Grieve, attorney general – “creating a degree of anarchy in the international order that [the UK is] trying to promote?” Thorbjørn Jagland, the secretary-general of the Council of Europe, views England as a “founding father” of convention and a “leading nation on human rights”; and the UK’s refusal to co-operate with the convention they are said to embody undermines the foundations and values of the EU and threatens the UK’s EU-membership.

MPs have now made the decision to draft the Voting Eligibility (Prisoners) Draft Bill, which outlines three main options for allowing prisoners to vote: continue with the current blanket-ban that is in force (option one), allow those with sentences of four years or less to vote (option two), or to allow prisoner’s with sentences of six months or less to vote (option three). This Bill is clearly influenced by the political motivation to hold off threats from Strasbourg and not influenced by a motivation to alter, or grant, constitutional rights.

The political motivation is reflected in the Bill’s inflexible options, which fail to address the real issue of prisoners voting rights. First of all, it does not fully consider the crime committed and its context, only sentence length. The issue here being that there seems to be no clear reason as to why the limit was set at four years, or even six months. The inflexibility and general-nature of these options only lead one to believe that such legislation would only be enacted to allow the UK to attempt to maintain positive relations with the EU and not to respect the concept of human rights; this political move is a poor attempt to respect the value of the right to vote and only shows a lack of consideration of the real issue.

Perhaps it would be more constitutional to create a system where people are not subject to a blanket disenfranchisement, or disenfranchisement based on general sentence length, but a consideration of the crime and its context before disenfranchisement; which could lead to a disenfranchisement system based upon precedent as opposed to generalised sentencing. This proposition opens up room for further debate on how such a system would initially be judged and where the limitations of disenfranchisement should lie. Not to mention, the bill that the taxpayers would be footing to have the cases considered in court could be potentially enormous.

The question to consider in regard to prisoner’s voting rights is whether or not you consider the right to vote as a privilege or a human right. If you consider it a privilege then you delve into further questions of defining what would allow such a privilege; but if you consider it a human right then, considering that prisoners are human, then prisoners should have the vote – I feel it is fair to say that there is little deliberation about the definition of human.

Whatever your personal opinions on prisoners voting rights and the UK’s membership to the EU it is clear that these two issues would ideally be decided separately. However, given the eight-year long wait for action in consideration of the ECHR’s ruling and the distant proposals for a referendum these issues have become closely intertwined and something of concern to the UK public. In theory, the outcome here stands on the same grounds as the infamous Factortame decision (Factortame Ltd v Secretary of State for the Environment, Transport and the Regions (Costs) (No.2) [2002] EWCA Civ 932) – deciding a crucial constitutional decision for the UK and concerning the supremacy of UK Parliament over the European Union.

 

Legal Aid: The Price of Justice

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25 October, 2013
Law & Practice, Michael Keightley
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legalaidcuts

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– Michael Keightley (LLB Law, Newcastle University) [email protected]

Substantial cuts made to the welfare system in April 2013 have been met with public outrage. In order to save an approximate £350m per-year, legal aid has been scrapped entirely for cases of divorce, welfare benefit disputes, child contact, clinical negligence and employment.

Further changes are restrictions in housing law, with legal aid only being allowed in extreme circumstances. Not to mention the ethically questionable decision that, in order to receive legal aid in cases of domestic violence, the victim is required to provide medical evidence. Alongside all of these changes, employment tribunals will now cost a minimum of £160 before you even attend the hearing and could result in a total cost of £1,200 for ‘complex’ cases, based around issues such as unfair dismissal or discrimination.

Consider the amount of people using the legal aid system in 2009/2010 (an approximate 2,965,000) and compare that to the Government’s aim to save £350m. From this we can see that the Government would save a mere £118.04 per-head – leaving almost 3million people without proper access to justice for a relatively low reward.

Are we not living in a society of equal treatment? Not to say the legal system has been altered. The intentions of the legal system, as a whole, remain to be fair and indiscriminative. The issue is the accessibility of a fair system. It becomes difficult to profess that a system is fair if all cannot properly access it. Attorney General Dominic Grieve argues that “everyone has a reasoned plan for why expenditure should not be cut from their area”, but this does not concern the legal system as a single area, it concerns the constitutional right of every individual’s access to justice.

These changes adversely affect those on low-incomes by not allowing help with the legal support that can ensure they treated rightfully. Take, for example, if someone on a low income were unfairly dismissed for their race or belief; they would be left with no income and no means to follow the issue up in an employment tribunal. This loss of income could branch out into issues with rent, claiming Jobseekers or obtaining future employment.

This need for assistance will then shift to private charities, such as The Citizen’s Advice Bureau, and people will be forced to face their issues with the limited assistance of these charities, or their own knowledge of the system. An even worse possibility is that they may feel forced into finding funding for legal representation elsewhere, which could be bank loans or high-interest payday loans.

But this extends beyond financial issues. When domestic violence victims are doubted through the need to submit medical evidence of their victimisation, it becomes an ethical issue. Breaking ethical boundaries like this could create a rift of mistrust between the people and the system they rely on to deliver justice.

For the legal system itself, lawyers could lose a significant amount of clients. With the area of criminal law having 1,358,000 acts of assistance funded by legal aid, criminal lawyers are also bound to suffer. Grieve also commented upon this issue, giving his sympathy for the lawyers that were to be affected, stating, “for self-employed people it is death by a thousand cuts and it’s an extremely painful process”. It is this issue of ‘self-employment’ that seems to be receiving such little consideration – it would seem nonsensical to stop people entering a local shop and buying groceries due to a choice based on their financial income, so it should be regarded as equally unfair that the government are forcing a restriction to the business of many self-employed lawyers.

It is difficult to draw a positive from these cuts. With adverse effects to the idea of ‘justice’ and people’s belief in the system under which they are ruled, it would be more relevant to refer to a Marxist approach, where the classes are being treated differently based on their income. Such a huge change that was rallied against by 96,000 people through an e-petition; the conclusion left to draw is that such budget cuts have shackled the concept of justice and limited people’s utilization of their rights.