Judges should not be hand-picked

by
21 April 2010

Lord Carey’s intervention over the Court of Appeal was regrettable, says Mark Hill QC

One might be forgiven for thinking that Lord Carey of Clifton has gener­ated more column-inches since re­tiring as Archbishop of Canterbury than he did when in office. His latest foray into the nation’s media is more than usually regrettable, as it strikes at the heart of the independence of the judiciary.

In a witness statement placed be­fore the Court of Appeal on Thursday of last week, Lord Carey sought to lend his support to an application by Gary McFarlane that his case be heard by a specially constituted Court of Appeal comprising five Lords Justice who had “a proven sensitivity to reli­gious issues”.

By what authority he sought to intervene is far from clear. He gave written evidence that, during his time as 103rd Archbishop of Canterbury, he was “responsible for the spiritual welfare of 70 million Anglicans in the worldwide communion” — a curious assertion in the light of the principle of autonomy underscored by the Lambeth Quadrilateral (See Press) His compulsion to intervene was couched as follows: “I am bound by my commitments as former Arch­bishop of Canterbury to defend the spiritual requirements of the An-glican Communion and of all sincere Christians. I am also bound to con­sider the rights of religious minor­ities.”

He seems to forget that, after he vacated the see of Canterbury, his successor inherited these respon­sibilities. As Monty Python would put it, he is an ex-Primate.

Yet Lord Carey’s intervention was not merely inappropriate: it was plainly wrong. Though written in somewhat archaic language, the judicial oath (sworn on the Bible or other holy book, or affirmed) is to “do right by all manner of people, after the law and usages of this realm, without fear or favour, affection or ill will”.

It applies to a judge’s entire future caseload, whether there is a religious dimension or not. Judges do not bring their beliefs into the court­room, but a skill-set that includes both intellect and impartiality.

Advertisement

Cases are determined by judges according to the law, and based upon the evidence placed before the court by the particular litigants concerned. Where matters of faith or doctrine are concerned, this can include expert evidence, often of a sophisticated con­tent. But judges are precluded from introducing their private opinions and experiences.

Cases are determined by judges according to the law, and based upon the evidence placed before the court by the particular litigants concerned. Where matters of faith or doctrine are concerned, this can include expert evidence, often of a sophisticated con­tent. But judges are precluded from introducing their private opinions and experiences.

The very suggestion that judges be hand-picked is inimical to the judicial process. Is this the same Lord Carey who spoke out against the establish­ment of sharia courts, who now invites the creation of a special Christian divi­sion of the High Court?

Lord Carey opines that “recent decisions of the courts have illumina­ted insensitivity to the interests and needs of the Christian community and represent disturbing judgments.” By this he seems to mean that, were he to have been the judge, he would have determined the matters differ­ently.

But judgments, from the Master of the Rolls down, are invariably ex­pressed only after a detached neutral evaluation of the evidence and sub­missions that have been heard. If there is something objectionable in suc­cessive waves of underlying equality and discrimination statutes, the fault lies with the legislature (of which Lord Carey is part), not the judiciary.

Any perceived failure to secure a favourable outcome lies not in the alleged prejudice of judges, but in an insufficiency of evidence or argument on behalf of individual litigants. Since one side will always be dissatisfied with the outcome, those who seek legal redress must ensure that ade­quate evidence is placed before the court to sustain their contentions. Reasoning by assertion is not enough.

The solution is not a hand-picked five-member Court of Appeal, for which the retired Archbishop con­tends. In a multifaith pluralist society, there can be no special pleading for Christians.

Certain of the recent decisions of which Lord Carey complains may arouse legitimate criticism. The Exeter nurse Shirley Chaplin fell foul of an absurdly rigorous health-and-safety regime; Nadia Eweida, the British Airways employee, lost the sympathy of the court owing to an un­reasonable disinclination to com­promise; and the Islington registrar of marriages and civil partnerships, Lillian Ladele, found herself in a public position the performance of whose duties needed to be value-neutral.

Each case was fact-specific, deter­mined in accordance with the law, upon the evidence led by the parties and subsequently subject to scrutiny at various levels of appeal. The de­cisions and their reasoning can be subject to comment; but to condemn the judges as prejudiced and to demand a specialist panel of judges designated to hear cases engaging religious rights is wholly without foundation.

Each case was fact-specific, deter­mined in accordance with the law, upon the evidence led by the parties and subsequently subject to scrutiny at various levels of appeal. The de­cisions and their reasoning can be subject to comment; but to condemn the judges as prejudiced and to demand a specialist panel of judges designated to hear cases engaging religious rights is wholly without foundation.

The accommodation of difference in a pluralist society, which is both liberal and tolerant, ought to be ac­complished without resort to lawyers and the courts. But the knowledge that, if such matters are to be referred to the courts, they will be adjudicated upon fairly, independently, and im­partially is a constitutional corner­stone that Lord Carey would do well not to dislodge.

Mark Hill QC is a practising barrister and Professor of Law at the Centre for Law and Religion at Cardiff University.

Welcome to the Church Times

​To explore the Church Times website fully, please sign in or subscribe.

Non-subscribers can read twelve articles for free each month. (You will need to register.)