In the News

UK judges, civil liberties and gender bias

Mike McCartney

7th May 2021

What does a recent high-profile ruling in a divorce case tell us?

The following evidence suggests the judiciary is effective in protecting civil liberties

  • Through the power of judicial review judges can declare actions by public officials/bodies ‘ultra vires’ and have been unafraid to use these powers, e.g. during John Major’s government the courts found against Howard as Home Secretary ten times on a range of issues, with the most high profile case involving overturning his decision to impose a minimum sentence on the killers of James Bulger.
  • Since the introduction of the Human Rights Act (1998) judges have had the power to review cases in light of the European Convention on Human Rights. Judges have used the new powers to provide citizens extra protection against civil rights abuses, my favourite example comes from 2004, when the Law Lords ruled 8-1 against the government’s indefinite detention of terrorist suspects in Belmarsh and Broadmoor prisons.
  • Judges are sufficiently independent from the executive to make decisions via judicial review even when the government may not like the outcome. In the summer of 2006, Tony Blair was sufficiently outraged by a High Court decision that allowed Afghan hijackers temporary leave to remain in Britain as ‘barmy’, an unprecedented attack on a ruling by a Prime Minister.
  • The appeals procedure has ensured that the right to a fair trial is upheld: the Guildford Four were released in 1989; in 1997 the men alleged to have killed Carl Bridgewater were released; in 1998 Derek Bentley’s murder conviction was quashed; in 2002 Stephen Downing was released after his conviction was declared unsafe.
  • Judges can also act as a pressure group via their comments (sometimes off the record) to the media, in the House of Lords, or when summing up cases: in 2003 Lord Woolf (a former Lord Chief Justice) attacked Blunkett’s plans to restrict the sentencing powers of judges; in 2004 Lord Hoffman declared during the Belmarsh trial that the Labour government’s anti-terrorism laws were a greater threat to liberty than terrorism itself.
  • The impact of the new Supreme Court can be addressed here. A number of cases received a lot of media coverage soon after judges crossed Parliament Square to their new home at Middlesex Guildhall, for instance:
  • In April 2010, five judges on the UK’s highest court of appeal on human rights (without being granted leave to appeal to Strasbourg) ruled that denying sex offenders the right to appeal to have their name taken off the sex offenders register (Sexual Offences Act 2003) was in breach of their right to a private and family life as covered by Article 8 of the European Convention on Human Rights
  • Lastly, there is lots of evidence that the kind of bias identified by JAG Griffith from the LSE in the “Politics of the Judiciary” over 40 years ago may be slowly unravelling. The fact that judges are almost a homogeneous bloc of white, middle-class males may not in fact affect their neutrality as shown by a couple of landmark divorce rulings (Miller v Miller and MacFarlane v MacFarlane) in 2006 where women have been awarded significant portions of their ex-husbands’ earnings.

These rulings set something of a precedent for subsequent “big money” matrimonial cases, and it brings us to another case that has received widespread media attention. According to a report in the Guardian:

“A high court judge has criticised Sir Frederick Barclay, the billionaire owner of the Daily Telegraph, for “reprehensible” behaviour during a divorce battle and ordered him to pay his estranged wife £100m.

Mr Justice Cohen said Barclay, 86, had breached a court order to sell a luxury yacht and produce the proceeds, and had instead sold the vessel and kept the money for himself.

“Part of [Barclay’s] available assets included a luxury yacht which was on the market for sale,” the judge said in his ruling on Wednesday. “I made orders intended to control the sale and the use of the proceeds. He completely ignored those orders, sold the yacht and applied the equity for his own use. I regarded that behaviour as reprehensible.”

Cohen ruled that Lady Hiroko Barclay should be awarded £100m. She had wanted £120m. The judge added that Barclay had made an offer which might have led to Lady Barclay receiving nothing at all following 34 years of marriage.”

See the full story here:

Of course, this last point regarding judicial bias can also be used in an answer to argue the case that the social background of judges does not necessarily have a causal relationship with their rulings on a case. That is to say, that just because the vast majority of senior judges are male does not mean that they will rule in favour of men in a case.

Mike McCartney

Mike is an experienced A-Level Politics teacher, author and examiner.

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