Quis custodiet ipsos custodes? [updated]
25 Tuesday Jan 2011
The former leader of the Conservative Party has claimed today that “more and more decisions are being made by unaccountable judges”. Essentially making the ‘green light’ argument that judicial intereference with politicians’ decisions should be limited in scope, Lord Howard said: “Judges are unaccountable and unelected and ought to be very reluctant indeed to set aside decisions of this kind”. He was speaking as a group of local authorities were launching a High Court challenge against the Government’s controversial decision to axe Labour’s multibillion-pound Building Schools for the Future secondary school rebuilding scheme.
The formation of the Coalition Government has seen a number of high-profile legal challenges to key policy decisions; for example the claim that the new tuition fees scheme breaches human rights and an unsuccessful bid to overturn the emergency budget. (The UK Human Rights Blog claims that even the Supreme Court seems a little confused on the question as to whether it can “overrule” Parliament). As well as the accountability of judges, such challenges also raise the question about the background of judges, and the roles that religious, cultural or political beliefs might play in the decisions they reach.
Back in June, the UKSCblog published posts by Aidan O’Neill QC (Matrix/Ampersand) and Jonathan Chaplin (Director, Kirby Laing Institute for Christian Ethics, Cambridge) discussing the religious and cultural background of judges, referring specifically to comments made by Laws LJ in the renewed application for permission to appeal in McFarlane v Relate Avon Ltd  EWCA Civ B1 (29 April 2010).
The recent county court decision in Hall & Anor v Bull & Anor  EW Misc 2 (CC) has sparked renewed interest in the issue. On 4 January, the Bristol County Court held that the defendant hotel owners had directly discriminated against a homosexual couple in a civil partnership, when they refused accommodation to them on the basis that they only let double rooms to married couples. The claim was brought under the Equality Act (Sexual Orientation) Regulations 2007; the claimants submitted that they were directly or indirectly discriminated against on the ground of their sexual orientation. The judge held that ECHR, arts 8, 9 and article 14 were all engaged in this case, and would need to be appropriately balanced. Whilst the defendant’s religious beliefs might engage art 9, that right was not absolute and could be limited. The judge held that in order to justify a discriminatory practice that was based on sexual orientation there needed to be a reason, which has nothing to do with sexual orientation – such as health and safety requirements.
In his judgment, Judge Andrew Rutherford cited Laws LJ in MCFarlane causing Dr Chaplin to suggest that “judges should be warned off any future reliance on the ill-considered opinions about law and religion ventured last year by Lord Justice Laws”. He argues that Laws has “obscured the proper relationship between religion and law” by his reasoning as to why no law can be justified purely on the basis of religion. He suggests that Laws’ assertion is based on two “problematic and potentially discriminatory claims” that law can only be justified when it can be seen rationally and objectively to advance the general good, and that religious belief is “incommunicable by any kind of proof or evidence”.
And the relationship between judges’ religious, cultural, or political backgrounds – and the decisions they make – was highlighted in the US yesterday, with the Los Angeles Times reporting Justice Antonin Scalia’s appearance at a meeting organized by the House Tea Party caucus.
Edit: The defendants in Hall & Anor v Bull & Anor have indicated that they will appeal.