The Independence of Judges

Baroness Murphy

It may be recess but the Parliamentary timetable waits for no-one. Committee stage of the Pensions Bill starts next Monday 28th and amendments for the first day of committee had to be placed in the Public Bill Office by yesterday at 4.00pm. I have added my name to that of three former Lord Chancellors (Lords Mackay of Clashfern, Irvine of Lairg and Falconer of Thoroton) to protest the proposed change to Judicial Pension contributions, which significantly alter the terms and conditions of the Judiciary for those who are already in post as well as future judges. We are proposing that the terms and conditions of the Judiciary should not be altered by legislation for existing judges without their consent.

Upping the contributions from well-heeled judges rather than the taxpayer bearing the cost as now will naturally be popular with the majority of people in the Chamber until they think through the consequences for maintaining an independent Judiciary. On the face of it, the bill shows a Government determined that middle class people should take a hit on their public sector pensions like many other public sector workers will be expected to do. You might ask why, with no personal interest in this matter (there are no judges in my family as far as I know) I feel so strongly that the Government is wrong. It is because there have been international agreements that to maintain an independent Judiciary it is essential that the Executive should not be able to tamper with the terms and conditions of a judge after appointment, allowing them to be free of the subtle pressures that can be exerted by Governments on their freedom to make independent and unpopular judgments.

There have been two occasions recently when I thought the Government’s statements about a judicial decision were worrying and plain wrong.  The first was the noisy opposition to the right of prisoners to vote in elections following a ruling of the European Court, whose judgments we are committed to upholding. The point of prison is to remove the freedom of the individual, a severe enough punishment, not to deny him all other rights as a citizen. The right for sentenced prisoners to vote is non-contentious elsewhere; about 40 per cent of Council of Europe countries have no restrictions at all. Others retain a partial ban or, like France and Germany, let judges decide in individual cases. Britain has stuck to a blanket ban, resisting a ruling in 2005 by the European Court of Human Rights. Parliament vote last week to defy that judgment.

The second occasion was David Cameron and Theresa May’s saying earlier this week that they were ‘appalled’ by the Supreme Court’s decision that a former sex offender should be able to challenge a lifetime on the Register of Offenders. But it’s common sense, and a clinical reality, that there are circumstances in which, after a period of time, an offender no longer poses any real risk of committing further offences and the principle of proportionality under the Human Rights Act 1998 requires a procedure by which the individual could apply to have his or her name taken off the register. This does not mean that such an application would necessarily succeed and it is down to parliament to devise a procedure to satisfy that right of appeal.

Both these issues are deeply unpopular with the public, but surely we do not want judges who are moved by popular opinion but rather by their independent judgment on fairness and proportionality? These values serve all of us. So I will be speaking up for maintaining every shred of the Judiciary’s independence from Executive pressure, including the right to vary their pension arrangements post-hoc.

16 comments for “The Independence of Judges

  1. Matt
    25/02/2011 at 1:43 pm

    I think you are mistaken in saying that both of the issues you refer to are ‘deeply’ unpopular with the public. Although, that is certainly the impression that one might get from reading ‘The Sun’ or ‘Daily Mail’ editorials.

    People who take an interest in these things have got enough sense to know that it is too blunt an instrument to deny all prisoners the vote. There were people imprisoned in the past for things that aren’t even crimes any more. There are people who are wrongfully imprisoned (which means that the un-detected criminal is still out there, voting). And, come to think of it, there are people who will use their extended stretch in prison to do a lot more thinking and reading, and might even be better placed to cast a vote as a result. And there may be necessary reforms to make to the prison/criminal justice system, and who better for the MP to take heed of, than the people with direct experience of it …

    Again, people who take an interest in these things have got enough sense to know that Mr.X, who is now aged 47, with an unblemished record, BUT who had a brief dalliance with a 15-year old lass, when he was a 17-year old lad, has a legitimate case for taking this matter back to the police and getting his name removed from the database.

    On now to the substantive point – All champions of judicial independence are to be commended, but you and others will need to tread very carefully, so that it doesn’t just appear that you are passionate about the pay-and-conditions of the already-well-off, with no similar level of passion shown for the army of less well-off public-sector workers.

  2. Carl.H
    25/02/2011 at 2:09 pm

    There are occasins when the noble Baroness shows why she is entitled to the dignity she has gained. This is one.

    Regards the pensions of serving Judiciary, it is part of a contract, I wonder if Government intends making contracts with suppliers in future and then reneging on payment ? Or perhaps haggling part way through the work ? By all means amend new contracts for those not in place.

    Regards prisoner votes, I will once again go to the 1689 Bill of Rights:

    “That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted

    Removing the vote from prisoners is to my mind an unusual punishment certainly not as far as I’m aware imposed by any Court. Government appears, not unusually, to be yet again interferring in the Judiaciary. Prisoners should have the right to be represented, their views need to be expressed if only to show how effective or ineffective the system is. In this modern age when TV, presumably licensed, radio, gyms and all manner of other things are available to prisoners why should the vote be with held and used as punishment?

    Prison is not just punishment, infact as a punishment it appears not to deter in all cases. The concept of punishment is to teach them the behaviour is wrong and should not be repeated, even in that punishment they are still a part of society.

    A man on bail before he is sentenced even though already found guilty is allowed to vote. Taking away the vote serves what purpose even if it were a legislated punishment, which I’m not sure it is.

    There are times I fully understand when Government need to act autonomously and not pander to the knee jerk reaction of the people, this is one. Think of how people will percieve the fact that prisoners have flat screen TV’s, radios, gyms, free education – all things the public struggle to afford – yet the Government is at arms at allowing a free vote. Seems quite ridiculous to me.

    Any offender including sex offenders have a right to appeal and all people change. Many sex offenders simply disappear into the woodwork and DO NOT follow guidance they are to all intents not on the register. What is being said is that those who obey and are good are not allowed to appeal the decision of lifelong registration. And it is only an appeal.

    There are circumstances where someone is put on the register at a very young age, for a moment of insanity which they later regret, for a crime that may not be as serious as you imagine.

    Again this is the area of the judiciary. Governments set guidance on sentencing but should not be involved in judicial sentencing, it is not a political issue.

    Consecutive Governments appear to be blurring the boundaries of the seperation of powers, this is not good or warranted.

  3. maude elwes
    25/02/2011 at 3:22 pm

    @Baroness Murphy: Government used this edict in order to set a precedent of disobedience to EU dictat. They felt the public, being hostile toward criminals in general, would see this as a worthy cause and a legitimate fight against our media inspired loss of sovereignty programme. In other words, to give the impression of this being the beginning of a fight against our contract with the EU. And, yes, it is sinister in the extreme.

    The media continue to perpetuate the notion that Europe, because of its Human Rights requirements, are an impediment to our collective freedom as a nation. Which is, of course, the reverse of the truth. And is ridiculous, as it was British lawyers who created the Act via existing British law in the first place. Human Rights were, in fact, achieved by the British Empire by ‘The Slave Trade Act of 1807.’

    In other words, it’s a government ploy to convince the public of an issue they feel will make them more popular at the ballot box. When, in reality, it is a fear of rich men and corporations toward the demand of the Act to treat the work force humanely.

    Where would we be without this piece of well thought out legislation? At the mercy of those who consider the citizen as unworthy, undeserving and second class to tyrannical persuasion.

    Therefore, it is indeed imperative that the Judiciary remain free from political exploitation. Otherwise we lose the Rule of Law altogether.

    And as a footnote, I feel no man or woman, no matter what their position, should lose the right to vote. It is absurd to think they should. And it is inhumane as a practice. The Democratic right to choose who ‘rules’ should be available to all.

  4. Gareth Howell
    25/02/2011 at 7:24 pm

    The point of prison is to remove the freedom of the individual, a severe enough punishment, not to deny him all other rights as a citizen

    For a cabinet minister now to say that he/she is appalled by a judicial decision, is surely little more than for any member of the public to do so?

    Whereas when Law Lords mentioned were members of cabinet as Lord Chancellor and government adviser, this is no longer the case.

    The Lord Chancellor in the HofC may exercise some powers either from cabinet to Law Lords
    or from Law lords to PM/cabinet, but they are now seriously limited.

    A cabinet minster may now be better advised to make public his own conscience/opinion on any given judgement, as my learnéd friend, the Home Secretary, Rt Hon Teresa May, has now done.

    It may be the ONLY way to exert any pressure for reconsideration of a judgement.

    The point of prison above has been changed pursuant to the 13th(?) UNCHR Article on Liberty and Security, and is not really contestable.

    There is no reason for the Home Secretary not to make her opinions known publicly on a UNCHR matter, which is, after all, now UK law.


  5. Senex
    25/02/2011 at 9:15 pm

    Contesting a parking fine by any chance?

    As for prisoners, should we call them non-citizens?

    If the treatment of non-citizens is benign then they have nothing to fear from the political process. However, if the political process is harmful to them, should they have a right to remedy this politically? This is the dilemma.

    As for sex and crime let’s turn this one on its head and consider the plight of the Indian Dalit women (Its Ok Lord Hylton I can go to places you cannot and should not):

    Before the British arrived in India the Dalit women had found an economic solution to their poverty by becoming concubines to the rich. As such they became the head of households and were subsequently granted equality rights plus land way ahead of their time. Today the practices are illegal under Indian law but these women are still the breadwinners and forced by extreme poverty to continue these practices.

    Who should be placed upon a sex offender’s register here, the men or the women and what Human Rights should they expect? If the women were imprisoned their families would starve to death. If these women appeared on a sex offenders list, would or should they stay on there for life?

    • maude elwes
      28/02/2011 at 3:05 pm

      I feel we should be more worried about importing more sexual exploitation from countries who have a way of life and culture that is an abomination to most UK citizens.

      What is it you are suggesting with your example? That the British should move to adjust the law and culture of other countries, when we have enough of our own to worry about. Human sex slavery is rampant throughout Europe and the UK. We don’t need to use an Indian example. And, from what we read in our press today, colluded in by our highest in the land, the son of our Monarch.

      If you want to use examples why don’t you choose the killing of three year old children for their livers, as is the practice in many parts of Africa and is spreading at a rampant rate as we write, to enable the males of their tribe to remain viagra free. The liver of a three year old child is considered as potent an aphrodisiac equal to the horn of a rhino.

      And don’t believe this will not follow here. Because it already has, through the practice of Obeah or witchcraft or Voodoo. Remember the dismembered body of a little boy found in the Thames, and, to a different degree, Victoria Clymbia, abused to her death, which was untouched by our social workers told not to interfere with ethnic families way of life.

      What do you suggest we do here? Wouldn’t the first step be to outlaw witchcraft, Voodoo or Obeah, but, no, they are now suggesting this is an acceptable religion and Churches, like the one attended by little Victoria’s killer, are shooting up all over our city.

      At home is where you should start. The first duty of our government is to protect the citizens of ‘this’ nation. Something that somehow no longer appears a priority here.

      • Carl.H
        28/02/2011 at 6:00 pm

        “Human sex slavery is rampant throughout Europe and the UK.”

        Not true at least in the UK Maude, as someone involved in the sex industry I have seen little evidence of such. Please read a more formative view from Stephen Patterson, Journalist, who is authorative on the subject:

        The hype surrounding the industry is created by misguided feminists, not all some are in favour of legalisation, and prohibitionists who see it as a moral crusade.

        • maude elwes
          01/03/2011 at 4:37 pm


          Well, I won’t ask what you do in the sex industry as I may be sorry I did…. I trust it doesn’t involve procurement of teenage girls for rich men!

          You have to scroll down a bit here, But according to what I read, you are mistaken. It is a growing and definite problem in Europe. Rich and wealthy countries are the place traffickers make most money. And like the drug trade, it is a draw to those who feel women and children are easily exploitable.

          You need to mix more with the underclasses. I think you may be somewhat sheltered and too nice.

          • Carl.H
            02/03/2011 at 11:49 am

            “You need to mix more with the underclasses. I think you may be somewhat sheltered and too nice.”

            This did put a smile on my face and not for just being called nice which I thank you for the compliment.

            I said I work in the sex industry and you say I need to mix more with the underclasses. I’m a little confused as to what you think the underclasses are ?

            Can I just ask where you mix with the “underclasses”, or whatever, that makes you specifically more qualified ?

            Your wiki link of trafficking infact where it gives exact figures shows the problem to be nowhere near the estimates bandied about by prohibitionist sources.

            Please read the Stephen Paterson articles, on where sex trafficking figures are corrupted and also the fact they are estimates in this country not based on a shred of evidence.

  6. MilesJSD
    26/02/2011 at 12:47 am

    Vote “Independence of Judiciary from Governmental and All outside-pressure and tampering”.

    Also vote “Independence of the people and of the individual person, especially of the disadvantaged and impecunious, from governmental and outside pressure and tampering”.


  7. MilesJSD
    26/02/2011 at 2:11 pm

    This issue is overarchingly oveshadowed, and possibly also underlyingly undermined, by much more profound and serious Issues:

    one of which is the long-term ‘safety’ of the “independent judgement…” of the Judiciary
    (& of the Crown; the Parliaments; the Establishment; Academia; the Economic Sector; the Media; the ‘People’; the Expert; the ‘Individual’; and of ‘Public-opininion’)
    on account of various unsustain-worthy self-interests, personal-life-inefficiencies,
    Earth-lifespports destructivities, and collective-cum-civilisational under-constructivities.

    [See strong and valid formal-argumentation, moral-reasoning, and life-experience, that has been published elsewhere in various places including on other Lords of the Blog comments (including the baroness’s):

    (“) the higher the money and assets, or lifesupports, you have been, are, or are planned to be given, the lower your personal life-efficiency and Earthlife supportiveness sinks (“):
    (“) ergo your exemplitude commensurately vanishes, both ‘lockstep’ and ‘gridlocked’; and therewith is eroded, undermined, eaten-away, the trustworthiness of your ‘judgement'(“) ].
    1411St260111. JSDM.

  8. MilesJSD
    26/02/2011 at 8:56 pm

    “Public-opininions” should be “Public-opinions”.

    “1411St260111.JSDM.” should be “1411St260211.JSDM.”.

    “and therewith is eroded…the trustworthiness of your ‘judgement'” should be
    “and therewith the trustworthiness of your (‘)judgement(‘) is undermined, eroded, ‘eaten-away'”.

  9. Twm O'r Nant
    27/02/2011 at 9:24 am

    Yes the Home Secretary is now also the ancient Lord Chancellor in the commons and she attends the Law Lords on ceremonial occasions, but probably for no other purpose, and certainly not attend the cabinet as lord chancellor to advise them on Law Lords judgements.

    Like the Lords Lieutenant of the counties it may seem as if the ceremonial comes with important work as well, but it does not.

    Going over: until 4/5 years ago, it included what is now the
    1) Dept of Constitutional affairs, (still large, Sec state in Lords)
    2) Lord speaker’s Office
    3) Lord Chancellor’s dept.(may be almost non existent?)

    It would be interesting to hear the reply from the noble Secretary of State in the Lords, if the noble baroness addressed her objections to him.

  10. Senex
    02/03/2011 at 9:53 pm

    Lent starts on March 9 and for my sins I’m giving up LotB blogging until after Easter. But as there are a few days left…

    When Lord Hylton first posted on the plight of the Indian Dalit he was as usual defending somebody on humanitarian grounds. Such abuses are invariably but not always associated with Universal Human Rights which provide or should provide a level playing field for the human condition.

    Lord Hylton got himself into a proper bind when he wrote on this.

    He was right to highlight abuse but in defending the Dalit was he encouraging by association prostitution, defending those that serve a God or simply saying that violence is wrong? What’s more from a Dalit women’s perspective, remember Dalit women ‘wear the trousers’ in the home was he to be respected or despised for defending them?

    Clearly child prostitution is serving a purpose in India, illegal though it is, and girls and women are subject to violence. Some girls are even wedded to the Koran in a similar manner to the Devadasi thereby providing an income to families that would otherwise starve to death.

    Just how level is that playing field?

    Ref: Why UnCaste India
    Forced Prostitution in the Name of God

  11. MilesJSD
    04/03/2011 at 1:35 am

    In the interests of Clarity, Charity and Self-Correctibility, perhaps my above post looks ‘convoluted’, too foggy anyway.

    The point needing to be included in formal and moral argumentation, and also in long-term ecologically-economic formulations, is a root a dual one:

    (1)(a) the more any individual* is given** from the Common-Purse and/or from Environment-Stock (i) the more they are depriving other people from drawing, and (ii) the more destructive of other people’s and of Earth Lifespports they are being***.

    (b) the more any individual has to take or be-given, the less personally-efficient they are at making-ends-meet and at conserving/preserving Earth’s Lifespports and those of other-people;
    (c) the more any individual is Costing thus, the less sustain-worthy they are becoming/have become.

    (2) The less sustain-worthy any individual, the less their leadership, command, governance, and/or judgement can be trusted.

    That is why The Judiciary is increasingly not to be trusted;

    and that is what this civilisation’s Pay-Structure has to peacefully-revolutionise, and urgently reform.
    * whether in workplace or lifeplace;
    ** is paid, remunerated, salaried, waged; or has ‘earned’/or draws; (from the Common Purse/Environment-Stock);
    *** is being, has been, are intent upon, and thereby will be (excessively-drawing upon the Common Purse/Environment-Stock).

  12. maude elwes
    06/03/2011 at 10:39 am

    @ Carl.H.: My evidence is as valid as yours. You are not the arbiter of the UK and European sex trade practice.

    And why are you more interested in the sex trade in India than you are in what is taking place here with us in our homeland?

    Perhaps if you concentrated more on the British and European way of life, you may be able to bring about some benefit to us. As you will have little or no weight with the Indian government who resent Western interference in their practices.

    I can only assume, because this video is of European women, not necessarily being abused by Islamic men, it will be considered acceptable to your sensitivities. And that my offering it for debate will not be construed as, inciting racial hatred.

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