Controversial service to go ahead
In September 2013, two LSS members launched a personal campaign for a separation of the Church of England from judicial affairs, by calling for the abolishment of the religious element of ceremonies to mark the start of the legal year.
The LSS has fully supported this campaign throughout and is now pleased to officially adopt this campaign as its own.
The LSS is maintaining a chronology of key events on this campaign on this page of our website.
Below, the two LSS members, Peter Fisher MBE (a retired Ministry of Justice civil servant), and John Butcher (a former Tory parliamentary candidate and current Surrey councillor), set out some of the background behind this annual ceremony and why the time has come to end it.
Apparently the 2014 Judges’ Service is to go ahead, despite requests both to government ministers and to senior judges to end it, backed up by clear reasoning.
For several centuries it has been traditional for the Lord Chancellor and the Dean of Westminster to invite judges to a religious service, known as the Judges’ Service, which takes place in Westminster Abbey on or about 1 October at the start of each judicial year.
The custom dates back to the Middle Ages, when the Church and the State in Britain were closely entwined and judges sought “divine guidance” in their judgments.
The world has moved on, and today’s standards of impartiality are higher: judges are and must be expected to take an impartial view of religious issues just as much as any other matters.
Who is involved?
Justices of the Supreme Court, the Lord Chief Justice, Lord Justices of Appeal, High Court Judges, some Circuit Judges and some other members of the judiciary are invited to attend the service publicly in their official capacity, during working hours, and wearing their judicial robes.
But the service itself is held in private; it is not open to the public and the media. The Judges’ Service follows the rites of the Church of England, so the judges participating give the appearance of official and personal support for Christianity in general and this denomination in particular.
Why change now? What is different?
The nature of this event has become increasingly controversial because of its potential impact on the impartiality of judges attending it, and because this custom has not changed despite the higher standards which have been introduced across the rest of the judicial system. There are various factors to take into consideration now, and since 1997 there have been several important changes:
- The Human Rights Act 1998 raised the importance of compliance with the European Convention on Human Rights, Article 6 (right to a fair hearing) and Article 9 (freedom of thought, conscience and religion, including non-religious beliefs).
- The Constitutional Reform Act 2005 changed the role of the Lord Chancellor so that he is no longer the head of the judiciary, nor a judge; he remains a Cabinet minister in the government.
- The Equalities Act 2010 has established “religion or belief” (which includes having no religion or belief) as a “protected characteristic”.
- Witnesses may be members of other religions or none, a fact which each is obliged to demonstrate to the court by the operation of the Oaths Act 1978.
- The number of cases coming before judges requiring resolution of conflicting religious claims has significantly increased; they involve points of difference between one religion or denomination and another, or between religious believers and non-believers.
- A Guide to Judicial Conduct has been introduced, which advises judges how to avoid the appearance of bias or lack of impartiality as regards many areas of their lives and activities.
- Senior judiciary have declared that judges today are secular (such as the President of the Family Division, 29 October 2013; and the Lord Chief Justice, 5 November 2013).
What’s the problem?
When any issue about religion arises, or a criminal defendant, a civil party or a witness in any case is not a Church of England member or a Christian (for example following another religion, or being agnostic or an atheist), they could well be worried in case the judge might treat them less favourably or discount their credibility for religious reasons. They may fear that expressing any complaint about this might make matters worse. Their apprehension is real and these fears seriously and increasingly undermine public confidence in justice. Any judge trying a case in which some religious issue arises is placed in a difficult position if they have attended a Judges’ Service, since it may have created the appearance of having pre-judged the issue.
What’s the solution?
The complete solution to this problem is for the Lord Chancellor (currently Chris Grayling MP) simply to end the Judges’ Service. This would require no legislative changes and would cost nothing; indeed there would be a modest saving of public expenditure.
How about a compromise?
A less satisfactory approach, but still an improvement, would be for individual judges to attend religious services of whatever character they choose (which is of course the right of every citizen), but in a private capacity, unofficially, in their own time and without wearing judicial robes. Failing that, if the Judges’ Services continue for the moment, as a minimum step they should be opened up to representative members of the public and media (as are most church services and most judicial proceedings), thus ending the traditional secrecy.
The campaign so far
The following have been alerted to the problems, in writing, so that none can say the issue has not been raised with them, and all have had ample opportunity to consider them and to respond:
- The Lord Chancellor and his officials in the Crown Office
- The Shadow Lord Chancellor
- The Lord Chief Justice, Presidents of Divisions, and Lords Justices (individually)
- The Justices of the Supreme Court (individually)
- The Chair of the House of Commons Justice Select Committee
- The Dean of Westminster (Abbey)
- Changes in the Guide to Judicial Conduct have been sought, to provide more explicit guidance on avoiding conflicts involving religion
- The Judicial Appointments Commission has been asked to provide information to demonstrate that religion does not affect the judicial selection process, which it has agreed to do
- Previously unpublished information (such as the identities of judges accepting invites for the service in previous years) has been obtained under the Freedom of Information Act 2000 and published on the LSS website.
The campaign to overcome the difficulties permanently continues, including urging the need for reform upon the Lord Chancellor and in due course his successor, and inviting all judges as independent individuals to demonstrate their impartiality, in accordance with their judicial oath, by not attending.
Commenting, LSS Secretary Charlie Klendjian said:
“The LSS is proud to adopt this campaign as its own, and we warmly thank Peter and John for all their hard work so far.
“As the LSS has remarked in the past: some might say these ceremonies are harmless and even fun traditions. There is however nothing funny about religious influences in a legal system, and we only need look to the present Middle East and to our own history for evidence of this. At best religious power and a fair legal system make quarrelsome bedfellows; at worst they are fundamentally incompatible.
“Democracy is an ever-evolving and ever-improving process. The machinery of democracy, which most certainly includes its legal system, must keep up with that drumbeat and we have every right to expect a fully secular legal system. It is high time this archaic service was abolished.”
(Image credit above: The Guardian)
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