Impartial decision makers or political animals

I write as a non-lawyer, but as one who is very interested in law and democracy

In criminal trials the judge, or magistrate, will oversee the conduct of cases to make sure that all procedures conform to the traditions of justice, including the decision as to what is admissible as evidence, what questions may be asked of witnesses, etc. The judge will also sum up, giving an indication of the value of some evidence. Finally, in the event of a guilty verdict the judge has to decide on the suitability of various penalties and the level and severity of the one chosen.

As time passes and new areas of wrong or crime become possible, the judiciary collectively will create precedent and in effect create new laws.

All this ideally is done with keen intelligence, independence, experience and a complete absence of personal consideration.

It is true that Parliament could repeal any law or modify it, or could lay down penalties for various offences.

We have seen at times over the past twenty years conflict between the judiciary and Parliament. Home secretaries have attempted to circumscribe judicial limits in sentencing, for instance. Who should prevail, the elected Parliament or the non-accountable judiciary? This question seems not to have been decided, and the contention continues.

More recently judges have become involved in other "political areas.

1) Judicial Review - judges have been asked to make decisions on areas which may not be strict interpretation of laws, but rather involve elements of morality and politics. In the latter areas judges may not be better qualified than many other members of society. The judges undoubtedly bring keen analytical minds to bear, but they are used not because they possess all the necessary skills but rather because of their probity. A famous case would be the Hutton Report, where the learned judge came to conclusions very different to those of many other experienced and able observers.

2) Judicial pronouncements. Recently Lord Phillips, the Chief Justice, made a statement to the effect that certain parts of Sharia Law should be adopted into UK law, at least for some citizens. In this he was following the Archbishop of Canterbury who had advocated that Sharia Law could be incorporated. Both men come from the liberal, multicultural tradition, which is discredited in the eyes of some people. In other words both men were making political utterances, not based on their specialised disciplines and in any casemaking statements which are normative, that is to say value judgements. Such judgements are not objective, or positive, not conducive to logical proof. They are in the area of political resolution only. So why were the two men flying kites from within their own areas?

There is a potential democratic problem here. If judges are going to behave in ways which embroach on political areas, then somehow they must be made accountable for any power they employ in these areas, or else shut up. Perhaps public confirmation hearings to try to weed out out judicial candidates who are unsafe, or to try to find a balance among them, is one way. We are familiar with this in American hearings for members of the supreme court or cabinet posts.

Perhaps this has all been true for some time, but with an ever more educated electorate and ever easier disemination of information it is not aceptable merely to act in deference to the judiciary and permit them unaccountable political, as opposed to judicial, power.