An interesting document has just hit the in-tray of every judge in England and Wales. Some 250 pages long with another 150 pages of appendices, it is the updated Equal Treatment Bench Book from the Judicial College. Boring? You might think so. A glance inside, however, shows that there is rather more to it than meets the casual eye.
For one thing, for a document actually produced by judges (most of those acknowledged in the introduction fall into that category) it is, as already noted, extraordinarily patronising, treating the judiciary rather as one would a junior trainee on her first day working at the Abbey National. One wonders how many judges need to be told that ‘disabled individuals may be affected in many different ways by the court process, some visibly, others invisibly’; that those suffering from mental illness may have difficulty in understanding paperwork; that people vary in their degree of religious observance; or (surprise, surprise) that life on a low income for extended periods is hard. If judges do not realise facts of this sort, they should not have been appointed in the first place.
For another, it manages to be worryingly tendentious and simultaneously dogmatic. For instance, the statement that ‘judicial diversity, in terms of ethnicity, gender, disability and so on, is vitally important in holding the confidence of the public and court users’ trips nicely off the tongue and may be plausible. But it is by no means incontrovertibly true: indeed, one might equally argue that it was rather insulting to any minority to suggest that its members naturally respected judges from their own community more than others. So also with the statement that Islamophobic hate crime spiked after Brexit: this is fiercely controverted, yet here presented as a straightforward background fact. And again: we are told that we must simply accept that lesbian or gay parenting is just as good for children as any other kind. There is, it is said, ‘no body of respectable research which points convincingly to any other conclusion’. By no means everyone will accept that (see here (on TCW) and here). To say the matter is beyond argument, however convenient for your point of view, is at the very least disingenuous.
And this brings us to the point of view itself. To say this document is politically slanted is an understatement: you could be forgiven for thinking that parts of it had been written by Harriet Harman in harness with a 1960s sociology professor. A promising start in the introduction: judges, it says, must not only adjudicate impartially and exclusively on the merits, but must take steps to ‘redress any inequality arising from difference or disadvantage’. And there’s more. The disabled should be regarded as handicapped not by their physical condition but by society’s reaction; they don’t suffer from disability but experience it; and (my favourite here) the rest of us aren’t able-bodied but ‘non-disabled’. The chapter on Gender, before it even starts, tells us that ‘further themes potentially relevant to minority ethnic women are contained in Chapter 8 (Racism, Cultural/Ethnic Differences, Antisemitism and Islamophobia)’. It goes on to talk about gender disadvantage and stereotyping; the unfortunate assumption that women will break from work to bring up children (unfortunately ‘deeply rooted’); and (horror of horrors) the fact that women undertake most childcare.
So it goes on. Social exclusion and poverty get a chapter to themselves; 12million are, we are told, too poor to visit family or friends in hospital. Racism is widespread, and inequality endemic. On religion, we need enormous indulgence: courts should apparently be prepared to limit those who can see an unveiled Muslim woman and prohibit any sketch being made of her. The chapter on LGBT issues starts by talking of the evils of discrimination, hate crime and bullying; complains that in one-third of the countries in the world same-sex relations are illegal, and says (in effect) that judges should not be too demanding when such people seek asylum. Oh, and on usage, ‘homosexual’ sounds old-fashioned and carries ‘echoes of discriminatory attitudes and practices in the past’ – so now you know. As for the chapter on transgender people, I leave that to your imagination: but we are told (what a surprise!) that UK law is out of date on the subject. Not surprisingly, there are copious references to academic articles; in addition reports by such organisations as ACAS, the TUC and Stonewall feature large, as does last year’s Lammy Review.
If this were material produced by a partisan organisation, there would be no objection to it: pressure groups, however tiresome, have the right to exert pressure. But this document is not. It amounts to official instructions to those in charge of our courts, emanating from the official body charged with judicial continuing education, and that is not acceptable. We have the right to expect political neutrality from the Judicial College as much as from our judiciary.
In any case there is a delicious irony about this affair. We always used to be told that the problem with our judges was that they were remote from ordinary people. Recently, however, it has been clear that this is simply not true. Judges speak the same language, have the same concerns and express the same views as the rest of us. A fascinating feature of documents like the Equal Treatment Bench Book is that the outlook with which it seems to be trying to inoculate the judiciary is a particular metropolitan morality that most people don’t understand or particularly care for. It is thus likely, if anything, to increase the distance between the judiciary and the rest of us. This can’t be a good thing. As between precious Islington ethics and what you hear in the Dog and Duck in Ashford, even if the latter sometimes offends, I think I know which one most people would prefer.