The New Judiciary - The effects of expansion and activism.

Kate Malleson Feb 1999 Hardback, £45

Foreword by Lord Justice Stephen Sedley

Activism is not a neutral word. In its origin (in Weimar Germany. where Aktivismus was coined to describe the involvement of intellectuals in politics) and in much modem usage, it connotes - politely - the crossing of accepted boundaries or - less politely - some form of politically correct hyperactivity. If the readiness of modem British judges to intervene is rightly described as activism, with the implication that standing by when injustice occurs is a neutral activity, then this book concerns an activist judiciary. The sense in which Kate Malleson explores it, however, is closer to that which as developed in the United States, where judicial activism has been used to denote the deployment of principle and policy to enhance or defeat enacted legislation where no literal application of the constitution is possible. The consequent debate between (among others) activists and originalists is replicated in one shape or another throughout the common law world. It is suffused, however, by a largely unspoken parallel dispute not about inputs or methods but about outcomes. Put crudely it is doubtful whether the originalist arguments which have featured prominently in public debates about new appointments to the Supreme Court would be anything like as strident if the Supreme Court had spent the postwar years deciding that the poor had no right to counsel, that racial segregation in schools was constitutional and that since the Constitution said nothing about abortion, restrictive state laws were permissible.

In the United Kingdom, no such drastic powers are possessed or claimed by the courts. But in the new human rights regime judges will have the obligation to act comformably with the Convention, to ensure that public administration does likewise and to read in Convention rights where legislation permits together with the fallback power to tell Parliament that legislation is in breach of the Convention. To do this they will be called on to gauge interferences with primary rights by criteria which include what is acceptable in a democratic society - a conscious Parliamentary enlargement of the judicial role. Kate Malleson suggests -and I agree - that this is not a revolutionary step but the continuation of a long postwar trend, not confined to this country of growing judicial concern with the just exercise of public power. Although it is repeatedly remarked on as a form of usurpation (in particular by journalists with an agitated editor and a deadline), what is more remarkable is the long sleep which judicial review of government fell into at the time of the First World war (I am not sure that it is rightly backdated to the 1880s) and did not begin to wake from until the 1950s. This seems to me to have been a period - with honourable and less honourable exceptions - of abdication of a major pan of the judicial function. Both periods, the passive and the active, as well as the earlier mid-Victorian period of strong judicial interventionism have a history which has still to be written.

But, as this book goes on to argue, a judiciary which accepts a role that places it increasingly in the mainstream of public controversies has to expect to be surveyed with a critical eye. This does not render acceptable some of the crass and abusive comments which have come from parts of the press in recent years. Nor is the seemingly indelible image of the judge as a dyspeptic old fool particularly useful, even when it carries the imprimatur of Ted Hughes, whose judge:

Clowning, half imbecile,

A Nero of the unalterable...

... squats listening

To his digestion and the solar silence.

Ted Hughes, 'The Judge', from Cave Birds, (Viking, 1978) © Faber and Faber.

But doing a job well, albeit in one's own way, rather than badly is something in which people have a legitimate interest, whether the incumbent is a plumber or judge. And judging is a lonely occupation. Many judges would welcome a reasoned appraisal from time to time of how they are coping - not simply in terms of appellate outcomes but in terms of the experience and satisfaction of court users. The received view that anything of the kind would be an invasion of judicial independence is giving way, I think, to a realisation that the daily round of trial and adjudication - judgery, you could call it - can be sometimes improved. More controversial no doubt, is the training of judges in questions of substantive law; but training does not have to mean dictation or coercion, and many of us think that any increment in our stock of knowledge and ideas is worth having so long as we do not forfeit the thing which makes us judges, our judgment.

Kate Malleson's thoughtful and useful study picks out the changes which are starting to reshape perceptions of the judicial role. These have, as she recognises, to accommodate the principle, fundamental to the rule of law in a democracy, that judges must function independently of the state which appoints and pays them, and which now helps also to train them. There are too many places in the world where judicial autonomy is constrained or disregarded for us to be able to take it indefinitely for granted. But if the symbiotic relationship between the Parliamentary and judicial severeignties continues to function in the 21st century as it has done, with ups and down, since the end of the 17th, the best hope for justice is that an active rather than an activist judiciary (in the American sense) should continue to populate the bench.

Stephen Sedley

Author's Introduction

The English judiciary is not generally regarded as an institution that welcomes radical change. Yet despite its reputation for conservatism, it is currently undergoing a process of transformation in its structure and style which has long-term implications for its future role. The origins of this development are the growth in size of the judiciary and the expansion of its policy-making role. In 1970 there were 288 judges. By 1998, this figure had increased to just under 3,000.

The ranks of the judiciary are Law Lords, Lords Justices, High Court Judges, Circuit Judges, Recorders, Assistant Recorders, District Judges and Deputy District Judges. Charting the expansion of the judges is difficult due to the lack of accurate statistical information. Before 1984, the judicial statistics were not collated in any systematic form. The Lord Chancellor's Department's figures are, by its own admission, rather unreliable before that time. Although the workload of the courts began to grow in the post-war period it was not until the 1970s that the significant expansion in numbers of judges occurred. The creation of the Crown Court in 1971 led to an unexpected increase in the caseload which required a significant expansion in the size of the judiciary and, in particular, the increased use of part-time judges. Speaking in 1973 at an international symposium on the judicial system, Sir Robert Megarry commented on the small size of the English bench in comparison to that of Canada~ He stated that although the effect of the Courts Act would be significant, he did not expect that it would alter the size and make-up of the bench (Megarry, 1973, p.105, See also JUSTICE, 1992, p.6)

As the number of judges has grown, so too has the scope of their powers. The development of judicial review since the 1960s has meant that judges' decisions have come to impact on more areas of public life than ever before. The incorporation of the European Convention on Human Rights in the Human Rights Act 1998 will take this activism a stage further by giving judges the power to determine whether legislation and the policy-making decisions of public bodies conform to the provisions of the Convention. The combined effect of these quantitative and qualitative changes has been to turn judging into a 'growth industry' (Stevens, 1993a, p.12).

This book examines the impact of the expansion in the size and role of the judiciary on the way judges are appointed, trained and scrutinised. It highlights the growing formalisation and professionalisation of those processes and the increasing pressure for greater accountability and openness. In some areas the changes are already substantial, in others they are only just beginning. In 1973, Sir Robert Megarry, a High Court judge, described the main features of the English judiciary in the following way: 'Machinery for discipline? Nil. Training? Nil'. (Quoted in Morton, Law politics and the judicial process p.100.)

It is unlikely that Sir Robert would have predicted (or indeed approved of) the central and expanding role which judicial training now occupies in the judicial system. The disciplinary machinery, in contrast, remains virtually non-existent, but is very unlikely to do so for much longer. Here the pressure for the creation of formal complaints and disciplinary systems is building up, and significant reforms now seem inevitable. Similarly, the traditionally closed and relatively informal appointments system is in the process of being overhauled. The recent introduction of public advertisements, interview panels, appointment criteria and job descriptions would have been almost unthinkable thirty years ago. The proposal for establishing a judicial appointments commission, which now commands widespread support, was no more than a fringe idea in 1970.

An important underlying factor in these developments has been the increase in public attention which the judiciary attracts. Until relatively recently judges were widely considered to be above criticism and were not required to explain or justify the way they worked. Today, they are regularly subjected to media scrutiny and are, in turn, increasingly willing to engage in public debate about the judicial system. As the judiciary loses its fear of publicity, the senior judges are beginning to develop a more professional approach to the media and to appreciate the need actively to promote the public support which once they took for granted.

These developments are not unique to England and Wales. The creation of more formalised, professionalised and accountable processes are evident in many judiciaries around the world. The forces of globalisation which have affected all areas of political and economic life have been particularly striking in the judiciary because of the stark contrast with earlier times. The inward-looking culture which was so characteristict of the old judiciary is gradually being abandoned as judges come to see themselves as members of a global legal community where knowledge and ideas are exchanged across jurisdictional boundaries. The emergence of the new judiciary must therefore be understood as part of a global process of change. The details and timing differ in different countries but the general trends are strikingly similar throughout liberal democracies. The ways in which other judiciaries have adapted in response to these general forces of change provide a pool of experience for the judiciary to draw on. In the past, the judges of other countries, particularly those of the Commonwealth, looked to England and Wales for guidance when shaping their judicial processes. Increasingly, those who once modelled themselves on the English judiciary now provide the models for England and Wales.

Despite the international scope of these developments, they have, to date, attracted relatively little attention outside legal circles. One reason being that the judges' continuing attachment to displays of tradition in matters of ritual and form has had the effect of reinforcing the popular image of the judiciary as being committed to archaic practices. In 1992, Lord Taylor, on his appointment as Lord Chief Justice, proposed that the judges should dispense with their wigs. His suggestion, which attracted considerable media attention, was ultimately defeated by the opposition of other senior members of the judiciary. In November 1997, Lord Irvine, shortly after his appointment as Lord Chancellor, announced that he would be dispensing with his wig and regalia for daily use, though with no plans to require other judges to follow his lead. Thus far, few have shown any enthusiasm for doing so.

Such examples of the strong role of continuity and tradition which underpins the culture of the judiciary have served to obscure the extent of the changes which are occurring. They have also reinforced the image of the judiciary as an exclusively legal institution which lies outside the mainstream political structure. Changes to its size, structure and processes are therefore generally viewed as being of relevance to lawyers but of limited concern to society at large. However, the new role which the Human Rights Act creates for the judges will do much more than the incremental expansion of judicial review to raise public awareness of the increase in judicial power. On the day that the Government published the White Paper on incorporating the European Convention on Human Rights, one newspaper ran the headline: 'Judges given more power'. While it is generally recognised that the Act involves a redistribution of political power, there is surprisingly little comment about the fact that we are about to transfer power to a body about which we know very little other than that its members are demographically unrepresentative.

As awareness of the implications of the increasing policy-making function of the judges grows, the debate on the role and function of the judiciary is very likely to attract the interest of a wider audience. To date, what little debate there has been about the expanding role of judges has generally focused on the broad political and social consequences of incorporating the European Convention on Human Rights. Will the change provide better protection for minority rights? Will it undermine the democratic process? Will the judiciary intrude upon areas which are rightly the remit of the executive or Parliament? Less attention has been paid to the implications of increasing judicial power for the judiciary itself As the power of the judges grows, it will become increasingly obvious that the way in which judges are appointed, trained and scrutinised is of relevance not just to the judiciary but to the wider political process.

The claim that the judiciary is part of the political landscape is not a new one. The myth that judges operated outside politics was finally laid to rest in 1977 with the publication of John Griffith's The Politics of the Judiciary. His central thesis today reads almost as a statement of the obvious: 'Judges are part of the machinery of authority within the State and as such cannot avoid the making of political decisions' (1977, p.190). However, at the time, his arguments were highly controversial and attracted strong criticism from commentators both on and off the bench (see, for example, Devlin, 1978: Lee, 1988). But even his critics would acknowledge that the fact that judges can and do make political decisions has never again been seriously questioned as a result of his work (Drewry, 1992.p 10; Jacob et al., 1996, p. 11).

In one respect Griffith's thesis has grown stronger as judicial activism has increased. In 1978 Lord Devlin, in a review of Griffith's work, argued that it was extravagant to talk of the politics of the judiciary as one of the 'major issues of British politics' (1978, p.510). This criticism was far more persuasive in the 1970s than it is in the 1990s. Very few judges today would argue that the judiciary plays no political role; the point of debate arises over the question of how extensive this aspect of their work is. Despite being a radical and groundbreaking work, Griffith's analysis of judicial politics in fact understated the extent of the politics of the judiciary since it focused on one aspect of that politics; the high-level policy-making of the top judges in the High Court and above in such fields as industrial relations, police powers, immigration, housing and public order. (The number of senior judges had grown from approximately 30 to approximately 140 as the size of the judiciary expanded by the time of the 1997 edition.) Quantitatively, such cases are rare. The senior judges make up less than ten per cent of the judiciary and moreover spend much of their time in decision-making which has little or no policy-making content. But this small policy-making area does not define the limits of judicial politics. Political action is not confined to the work of those institutions traditionally regarded as composing the political machinery, but encompasses all decision-making which involves an authoritative allocation of values.

(This approach has a long pedigree. See, for example, Easton, 1953.)

The strength of this wider perspective on politics is that it emphasises the distinction between politics and partisanship. One reason why judges have been keen to stress the apolitical nature of their work is that political activity has traditionally been associated with the partisan support for the policies of political parties. If politics is broadened beyond this narrow definition, then the political activity of the judges can be distinguished from the party system and understood in more general terms as the exercise of power by those in authority. Although judges still shun the word politics, they are increasingly willing to acknowledge that they exercise power both over individuals and the process of government:

Judges exercise power. They take decisions which affect the lives and interests of people. They make judgments on matters that affect the way in which we are governed (Lord Steyn, 1997, p.84).

In a small number of high level cases, judges reach policy decisions which directly affect society as a whole. More commonly, on a day to day level they authoritatively allocate value, whether that value takes the form of privilege, status, advantage or money (Jacob et al., 1996, p.8). The job of the judges, even at the lowest ranks where they perform a social service function by resolving day to day disputes with no direct influence on public policy, is inherently political in the sense of being the exercise of: 'human influence over inter-personal relations' (Bell, 1985, p. 54).

This wider definition of judicial politics has, to date, had only a limited impact on the analysis of the judiciary. Nevertheless, it represents an important change of approach because if the judiciary is reconceptualised as an inherently political institution then the way in which judges are appointed, trained and scrutinised needs to be rethought. The background of the judges, the mechanisms and criteria used for selecting them, the skills which they need to acquire, the way in which their performance is reviewed and improved - all these issues will influence the exercise of judicial power in its broadest sense. One effect of such a redefinition of judicial politics is to draw the judiciary out of its specialist legal niche. While it continues to be believed that 90 per cent of the time of 90 per cent of judges is spent in non-political activity then the structure and processes of the judiciary as a whole need not be the subject of general public interest. However, if all judges are viewed as engaged in political activity as decision-makers who authoritatively allocate value, then the way in which they are appointed, trained and scrutinised should be a matter of general public interest and the subject of wider debate.

This revision of the judicial function also has an effect on the role of accountability. If judging is per se a political activity, then the public are entitled to demand that the judges are socially and politically accountable. Traditionally the judges have resisted this pressure on the grounds that increasing accountability would undermine judicial independence. As the role of the judiciary has expanded, the freedom from accountability which the judiciary traditionally enjoyed has become increasingly untenable. The pressure for greater accountability' is a recurring force behind many of the changes reviewed in this study and it is this conflict between the requirements of judicial independence and accountability which lies at the heart of the current transformation of the judiciary.

Illegal Drug use in the UK - Introduction

This report details the findings of a two-year study into the effectiveness of the RAPt drug treatment programme which has been operating in a number of male prisons in the south-east of England. Initially, the aim of the research was narrowly defined as being:

To evaluate the effectiveness of the RAPt treatment programme in enabling male prisoners with self-confessed problems of substance misuse to lead a drug and alcohol-free life, both in prison and in the community after their release.

Subsequently, after the fieldwork had been completed, an additional aim was accommodated:

To assess whether the completion of the RAPt drug treatment programme is associated with a reduction in the likelihood of reconviction post-release.

The purpose of this report is to provide a digestible account of the main findings that emerged from this highly focused empirical work.

BACKGROUND TO THE STUDY

The history of this research began five years ago. In 1994/5 the

authors carried out a preliminary evaluation of the ADT (Addictive

Diseases Trust) programme at HMP Downview for the Prison

Department. ADT (as RAPT was formerly known) was the first

therapeutic programme exclusively for drug and alcohol misusers

to operate in a prison in England or Wales. The programme was

innovative and was based on a residential adaptation of the '12 Step

Minnesota Model' that requires total abstinence from drugs and

alcohol for its participants.

The Prison Department commissioned the research to ascertain information in four key areas:

a detailed description of the programme

its accommodation within the prison environment

the effectiveness of the programme in reducing drug and alcohol use in prison; and

guidance for the development of further research to assess the longer term effects of treatment.

At the time of the preliminary evaluation, it was envisaged that a two year outcome study would follow, to examine the performance of the programme in terms of its participants' drug/alcohol use and offending behaviour post-release. However, due to changes in personnel and research priorities in the Prison Department, that follow-up study was never commissioned.

The Chief Executive and Board of Trustees at RAPt understood, nevertheless, that the long-term future of their programme within penal establishments in England and Wales depended on independent evidence of the programme's effectiveness. Accordingly, they invited tenders for a research contract to carry out the original evaluation.

Rounding Up the Usual Suspects? Developments in Contemporary Law Enforcement Intelligence Peter Gill

In North America police forces have been deploying intelligence techniques for most of the 20th century, primarily against political dissent and organized crime, but the attempt to systematize these efforts only dates from the 1960s. In the UK the introduction of "intelligence-led policing" in the 1990s resulted from the failure of police to "control crime," the scandals associated with relying on confessions and the apparent growth of serious and organized crime.

Rounding Up the Usual Suspects? provides a conceptual and empirical map of the local, national and global development of intelligence-led policing. The comparative analysis of law enforcement networks in North America and the UK examines whether new technologies and strategies are transforming policing or have been appropriated by police to reinforce traditional practices. It is argued that the developing framework for the control and accountability of these techniques within the context of human rights in the UK is inadequate and alternatives are considered.

Contents: Governance, information and police; Policing networks; Crime networks; Development of intelligence-led policing in the UK; Law enforcement intelligence in North America; Targeting the intelligence process; Technologies of information gathering; Informants and undercover police; Producing and using intelligence; Rounding-up the usual suspects?; Bibliography; Index.

Peter Gill, Liverpool John Moores University, UK.

2000   306 pages     £42.50   Hardback

Policing the Line

The Development of a theoretical model for the policing of conflict

Norman S. J. Baxter, Royal Ulster Constabulary,UK, May 2000

Focusing on an area which has become one of the most controversial and critical issues facing modem policing, this book provides a comprehensive new conflict management model that has the potential to become the template used by police forces throughout the world. Reviewing the historical context of conflict and examining the legal mandate upon the State to regulate society and protect the rights of the individual, the book offers a detailed analysis of national and international legislation and jurisprudence in respect of the duties and responsibilities placed upon the police when addressing violent conflict.

The model presented is both predictive and descriptive and is constructed through evidence deduced from practical incidents, representative of the most common typologies of conflict. It will be an instructive and essential resource for serving officers involved in conflict management and conflict training, and for academics and researchers in the field of criminal justice and policing.

Contents

Conflict and the police;
The causes of conflict within society;
The role of the police within the constitution of the United Kingdom;
The legal powers of the state;
the legal rights of the individual;
Planning and decision making models:
the policing environment;
Case study 1: the civil rights movement 1966-69;
Case study 2: the miners strike 1984-85;
Case study 3: loyalist parades Drumcree 1995-98;
Analysis of case studies;
A theoretical model for managing conflict;
Bibliography.

LINKS

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