The reasoning behind the decisions made by judges can have a detrimental effect on the impartiality of the judiciary. The impartiality of the judiciary refers to the fairness of the judiciary in their decision making this includes any biases towards race, gender, sex or religion. It is important for judges to ensure that trials are met with similar applications of law, when this isn’t the case decisions are appealed by the parties of the case.
In 1973 Britain joined the EU. However, in 2015 Parliament passed the European Union Referendum Act and in 2016 a majority vote in favour for leaving the EU was obtained, consequently bringing the EU membership to an end. Numerous issues occurred as a result of ending Britain’s EU membership, one of those issues for the courts was whether the government should be required to give notice of the decision to leave the EU in particular by invoking Article 50 of the Treaty of Lisbon. Further issues involved the necessary steps in order to initiate the leaving process in relation to Article 50. Initially the question to be considered was whether Ministers could give formal notice without a new Act of Parliament which would require the use of prerogative powers. Government Ministers are entitled to use prerogative powers generally in domestic law rather than international law without approval from Parliament. Therefore, by Ministers attempting to bring about international changes, using prerogative powers poses a problem surrounding the impartiality of the judges when applying law in this particular situation.
In the case of Miller v Secretary of State for Exiting the EU, it was stated during the ruling that the common law is “not open to judges to apply or develop…in a way which is inconsistent with the law,” judges must interpret legislation in a way which is in accordance with the law. In the GCHQ case, it is illustrated that particular powers – prerogative powers, allowed judges to interpret and apply the law in a way which is inconsistent with the common law. In this case, Government Ministers used the prerogative powers that they were given to prevent the employees at the GCHQ from joining a trade union in case this led to a future strike. In order to fulfil this, the government altered the terms of employment thus hindering the joining of such unions. As a result, the employees sough judicial review for the misuse of powers. It was held that the type of prerogative powers remained non-justiciable as there was nothing inhibiting the judiciary from considering the use of prerogative powers. It should be noted that due to the GCHQ case many other cases where powers have been used illegitimately are now being challenged. Lord Diplock established three categories in which prerogative powers can undergo judicial review: illegality; irrationality and procedural impropriety. All three categories give rise to judicial review for those who feel as though prerogative powers have been misused. Examples of prerogative powers being used unnecessarily is a result of judges or Ministers being bias in identifying and applying the law.
Before the GCHQ case many cases where there had been a misuse of powers there would have been no way to appeal the decisions made. Government officials and judges may use their powers in a way which is bias or illegitimate and the GCHQ case allows individuals who feel that decisions made were based on a bias or misuse of power are able to put an application in for judicial review. One could argue that judicial review can help to overcome bias rulings as many judges are from a similar background and thus hold beliefs that are of a similar nature and therefore there will be some kind of bias revolving around the impartiality of decision making.
Further examples of powers being used illegitimately over time has been illustrated by Marxists. The bourgeois took advantage of the proletariat as they were higher up the social economic ladder therefore, being able to use wealth and dominance in order to achieve what they wanted. Similarly, government Ministers like in the GCHQ case were able to manipulate the powers they had been given to implement new terms of employment unlawfully. Parliament act in a similar way to the bourgeois as they can ‘make and unmake any law’ they wish thus highlighting the extent of the power the ministers can hold. In relation to the Miller case, judges can make such decisions that are impartial and before the GCHQ case these decisions would not have been challenged. Marxism highlights the manipulation of power and the effect it has on society, it promotes inequalities within the economic ladder and in the context of law, it illustrates a divide between the authority of the judge and the law.
Despite this, there has been some attempt to overcome bias rulings by implanting tribunals as well as judicial review as suggested in the GCHQ case. Tribunals appear to be fair, independent and impartial which in theory would overcome unfair judges. These tribunals are often used as an oppose to normal courts as they are cheaper and generally much quicker than courts because they consist of one judge ruling alone rather than being assisted by a jury for example.
Whilst tribunals are not bound by precedent they are free to build on previous decisions, tribunals have a much greater freedom than courts of law as they must only apply the law in a fair manner rather than based on the precedent of a previous case. Not being bound by precedent can be both an advantage and a disadvantage as tribunals can use other decisions as a basis for present cases without the fear of not being able to overrule them. However, precedent does ensure that like cases are decided in a similar way in order to avoid bias or inappropriate rulings.The Franks Committee (the Committee on Tribunals and Inquiries) established some key findings during their investigation, one of which was that tribunals and inquiries should be conducted with “openness, fairness and impartiality.” This was also a problem that the committee was considering as there were varying standards of procedural fairness which leads to a lack of any procedural uniformity. The reasoning behind this problem is that as tribunals are not bound by precedent, judges are able to implement their own way of reaching an outcome which could potentially lead to bias rulings. One suggested way to overcome this issue was that procedural rules for tribunals should be established so as to find some uniformity. In order for there to some form of impartiality in courts, there must be a specific procedure for judges to follow and this could include the use of precedent and a jury. The main crutch for the decision of a case can generally come from precedent and with precedent it provides some kind of structure for judges to follow.
Following tribunals, inquiries also provide a way for the judiciary to ensure independence. Non-statutory public inquiries are those which examine a particular event which is of a public concern, it is examined by a senior judge in order to investigate matters which can help to restore public confidence. The Taylor Inquiry came about after the Hillsborough Disaster. The Hillsborough Disaster was an incident in 1989 when 96 Liverpool fans lost their lives and hundreds more were injured. The football match took place at Hillsborough Stadium and had a combined capacity of 2,200 people, the match was intended to be a repeat of the 1988 semi-final of Liverpool v Nottingham Forest. The police had ordered the exit gate to be opened consequently allowing a further 2,000 fans into the stadium which caused severe crushing in the pens. The Taylor Inquiry was set up to seek justice for the 96 people who had lost their lives, in this report it was repeatedly highlighted that it was the fault of the police officers in their negligence of familiarising themselves of the stadium before the match. It was found that the Superintendent at the time should have been found guilty of negligence as he failed to take the necessary steps to ensure the safety of fans when arriving and leaving the stadium.
The need for the inquiry came about after many relatives of the decease has lost faith in the justice system following no person being held liable for the 96 who sadly died. The independent judiciary in this case was necessary to ensure that there was no bias leading towards the innocence of the police officers. Had neither Superintendent been found guilty of manslaughter or negligence there would have been no restoration in public confidence. Restoring public confidence is an advantage of public inquiries as it provides in-depth analysis of the case at hand as well as finding where the blame lies to ensure the prevention from it happening again. Public inquiries along with tribunals are an attempt to overcome the potential of bias rulings.
If judges do ‘impartially identify and apply the law’ in every case, they would be acting in accordance with many pieces of legislation such as the European Convention on Human Rights. Article 6 of the convention states that every person is entitled to a fair hearing however in the case of Sander v United Kingdom there was a breach of this by the judge. During the trial there were allegations of a racial bias within the jury who were trying an Asian defendant, the judge decided to redirect the jury rather than dismissing them. In the given circumstances, the racial bias constitutes as an infringement of the right to a fair trial supposedly guaranteed by Article 6. There were two letters received by the judge the first signed by all the members of the jury refuting the allegations and placing emphasis that the verdict would be reached solely on the given evidence. The second letter was from one member of the jury apologising for any offence caused therefore implying that there was some form of a racial bias occurring. The judge made the decision to keep the jury rather than dismissing them and thus they found the applicant guilty and he was sentenced to five years’ imprisonment. The applicant appealed inter alia that the judge should have dismissed the jury. The Court of Appeal held that as only one member of the jury admitted to being racially bias there was no real risk of a bias. The European Court of Human Rights ruled on the premise that the applicant had not complained about not being tried by an impartial tribunal however, Article 6 does in fact entitle the applicant to a fair trial which he was deprived of. The outcome was that as the trial judge was aware of the potential racial bias and it should have been drawn to his attention that something was wrong and as a consequence the judge should have dismissed them. Therefore, there was a breach of Article 6.
In the Miller case, it was highlighted that judges impartially identify and the law without any biases. Although, further into the ruling the judges stated that the role of judges is to develop the law in accordance with other pieces of statutes. Therefore, the judge in the case of Sander should have dismissed the jury because under Article 6 of the European Convention on Human Rights, judges are obliged to ensure that every person is entitled to a fair trial and the case of Sander is a prime example of an impartial jury.
By implying that judges ‘impartially identify and apply the law’ in every case is a bold statement to make especially when tribunals are concerned as they do not provide any structure for the judiciary to follow. The use of prerogative powers gives judges the ability to over exercise their powers, one may say that it can even tempt judges into using their powers illegitimately. Judges are immune from acts which occur as a result of their judicial function and this can lure judges to use their powers illegitimately as they are aware that they cannot be prosecuted.
Despite the attempt to overcome judicial bias and extreme interpretations, the use of prerogative powers and immunity still provide temptation for judges to use their powers incorrectly. In my opinion, judges do not impartially identify and apply the law because judges do interpret the laws according to their own beliefs and therefore there will always be some kind of bias in their rulings.