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November 1, 2015

The politics of the judiciary

Should we know how judges vote?  Jeremy Paxman pointed out in the Financial Times on Friday that we know very little about the political affiliation of our judges. “Judges appointed to the US Supreme Court are obliged to undergo scrutiny from elected representatives. Why not here? If the English appointments process is nosy enough to inquire about sexual preferences, why does it not also ask how would-be judges vote in elections? Why shouldn’t we know?”.  A Conservative minister suggested to Jeremy that most High Court judges were Guardian readers, whereas a barrister friend thought most judges read the Daily Telegraph. But newspaper readership is an imperfect proxy for voting, and we have no real idea of the political affiliation of our judges.

Lay magistrates used to be asked what party they voted for.  The last figures published in 2004 suggested 32% were Tory, 26% Labour and 13% LibDem.  The information had originally been sought to monitor social background, with Labour assumed to correlate with working-class.  Lord Chancellors got increasingly uncomfortable about this recruitment question, partly because voting habit is not the best measure of class, partly because it mixed politics with judicial appointment in too overt a way.  Now we have no information on the political affiliation of JPs, and poor information on their social background.  Magistrates are asked about their occupation when they apply, but that information is never updated and is not routinely published.  A parliamentary answer from two years ago suggested, unsurprisingly, that the magistracy is disproportionately middle class, with over half in management or professional positions compared to 28% in the population.

I am not convinced that we should “out” the political affiliation of Supreme court judges, as they do in the States, but I do think we should commission an anonymised study of paid and lay judges – of their social background, and voting habits.  And there should be a public register of judges’ interests.  All decisions are affected by a person’s background, environment and interests. If we know precisely who are judges are, we can better understand the judgements they make, and how to ensure the judiciary is genuinely diverse.