Judging the Judges: the New Scheme of Judicial Conduct and Discipline in Scotland

Date01 September 2009
Pages427-444
DOI10.3366/E1364980909000572
Published date01 September 2009
INTRODUCTION

The past decade has seen some highly significant constitutional developments in the United Kingdom. One aspect of these changes has been to confer a central role on the judiciary to police the new constitutional settlement, in particular in relation to human rights and devolution. Partly as a consequence of these reforms, the constitutional position of the judiciary has come under increasing scrutiny and there has been a notable trend towards the formalisation of the relationship between the judiciary and other branches of government. This is illustrated in England and Wales by the “Concordat” which sets out the division of responsibilities between the Lord Chancellor and the Lord Chief Justice in relation to the administration of justice.1

The Concordat is reproduced as Appendix 6 of the Select Committee Report on the Constitutional Reform Bill, HL Paper 125-I (2004), and is also available at http://www.dca.gov.uk/consult/lcoffice/judiciary.htm. The House of Lords Select Committee on the Constitution has since called on the government and the judiciary to “establish a practice of amending the Concordat whenever necessary to ensure that it remains a living document reflecting current arrangements rather than being merely a historic document recording the outcome of negotiations in 2005”: see Relations between the executive, the judiciary and Parliament: Follow-up Report, 11th Report of Session 2007–08, HL Paper 177 (2008) (available at http://www.publications.parliament.uk/pa/ld200708/ldselect/ldconst/177/177.pdf) para 14.

The Concordat was followed by the Constitutional Reform Act 2005 which incorporated many aspects of the relationship between the judiciary and the executive into statute. The Judiciary and Courts (Scotland) Act 20082

Asp 6. The Bill was passed by the Scottish Parliament on 25 Sept 2008 and received Royal Assent on 29 Oct 2008.

can be seen as a reflection of this trend in the Scottish context

The Cabinet Secretary for Justice, Kenny MacAskill, hailed the 2008 Act as “an important constitutional measure that provides a rare opportunity to refresh the relationship between the judicial, legislative and executive arms of government”.3

Scottish Parliament, Official Report col 11270 (25 Sept 2008).

When it comes fully into force, the Act will make considerable changes to the Scottish judicial system.4

Important parts of the Act are already in force, including the guarantee of judicial independence (s 1) and the provisions in respect of judicial appointments (ss 9–26): see Judiciary and Courts (Scotland) Act 2008 (Commencement No 1) Order 2009, SSI 2009/83; Judiciary and Courts (Scotland) Act 2008 (Commencement No 2) Order 2009, SSI 2009/192. However, the provisions on judicial conduct and discipline (ss 28–43), with which this article is mainly concerned, are not yet in force.

In particular, the Act enshrines the independence of the judiciary in statute5

2008 Act s 1.

and unifies it under the leadership of the Lord President of the Court of Session.6

2008 Act s 2.

Amongst the many innovative aspects of the Act is the creation of a new scheme of judicial conduct and discipline. Except in relation to the removal of judges from office,7

The removal of Court of Session judges is governed by the Scotland Act 1998 s 95 and the Scotland Act 1998 (Transitory and Transitional Provisions) (Removal of Judges) Order 1999, SI 1999/1017. This latter instrument will be repealed and replaced by the 2008 Act ss 35–39 and 73. Removal of sheriffs is governed by the Sheriff Courts (Scotland) Act 1971 s 12. This section will be substituted by the provisions found in the 2008 Act s 40. The removal of justices of the peace is covered in part by the Criminal Proceedings etc (Reform) (Scotland) Act 2007 s 71.

this is the first time that judicial discipline has been dealt with by statute. The provisions increase the accountability of judicial office holders by making disciplinary processes more transparent than in the past. At the same time, they raise questions about how to balance accountability against the principle of judicial independence. The purpose of this article is to analyse how these values are reflected in the 2008 Act in the context of judicial conduct and discipline and to ask whether an appropriate balance has been struck. The analysis will also consider how the Scottish provisions compare with developments in England and Wales where a scheme of judicial discipline was introduced by the Constitutional Reform Act 2005.8

Constitutional Reform Act 2005 ss 108–119. See also the Judicial Discipline (Prescribed Procedures) Regulations 2006, SI 2006/676, as amended by the Judicial Discipline (Prescribed Procedures) (Amendment) Regulations 2008, SI 2008/2098.

INDEPENDENCE AND ACCOUNTABILITY

The regulation of judicial discipline has at its heart two countervailing constitutional values. On the one hand, as public servants, judges are expected to act according to certain standards of conduct. Le Sueur notes that “a mature democracy requires those who exercise power to hold themselves open to account. Judicial power ought not to be excluded from accountability requirements.”9

A Le Sueur, “Developing mechanisms for judicial accountability in the UK” (2004) 24 Legal Studies 73 at 74.

On the other hand, the principle of judicial independence requires that judges should be isolated from interference by other branches of government.10

The principle of judicial independence is now codified in s 1 of the 2008 Act. See also Constitutional Reform Act 2005 ss 3, 4.

Clearly, the principle of judicial independence limits the types of action that can be taken against the judiciary. In relation to removing judges from office, statutory safeguards already seek to ensure that dismissal cannot be achieved too easily.11

See n 7 above.

As stated by Lord Sutherland in Clancy v Caird, “[t]he most basic requirement for independence is security of tenure such as to provide a guarantee against any interference with the judge's function from any outside source and in particular from the Executive”.12

Clancy v Caird (No 2) 2000 SC 441 at 447.

The principle of judicial independence also limits the type of action that can be taken against a judge who has acted in a way that, although not serious enough to merit dismissal, is nevertheless considered to be unacceptable. In this context, judicial independence demands that judges are not subject to discipline by other branches of government. It does not follow, however, that the judiciary should not be subject to any form of external oversight. Judicial independence and accountability are not diametrically opposed.13

See F Contini and R Mohr, “Reconciling independence and accountability in judicial systems” (2007) 3 Utrecht L Rev 26.

Bogdanor makes a useful distinction between “sacrificial” and “explanatory” accountability.14

V Bogdanor, “Parliament and the judiciary: the problem of accountability” (2006 Sunningdale Lecture, available at http://www.ukpac.org/bogdanor_speech.htm). See also S C Styles, “The Scottish judiciary”, in A McHarg and T Mullen (eds), Public Law in Scotland (2006) 174 at 190–193.

Sacrificial accountability dictates that one institution is subject to the control of another. Explanatory accountability, on the other hand, simply involves the scrutiny of an institution by another body. In other words, explanatory accountability seeks to increase transparency in the exercise of public powers

Transparency is an important value in the modern constitutional practice of the United Kingdom. Openness was one of the seven principles of public life espoused by Lord Nolan and his Committee on Standards in Public Life:15

Standards in public life: first report of the Committee on Standards in Public Life (Cm 2850: 1995) 14.

[H]olders of public office should be as open as possible about all decisions and actions that they take. They should give reasons for their decisions and restrict information only when the wider public interest clearly demands it.

This principle has been implemented in relation to other branches of government through legislation such as the Freedom of Information (Scotland) Act 2002. The principle of transparency has also been acknowledged in a number of judicial decisions. For instance, in R v Home Secretary ex p Doody, Lord Mustill referred to “the continuing momentum … towards openness of decision-making”16

[1994] 1 AC 531 at 564.

and “a perceptible trend towards an insistence on greater openness, or if one prefers the contemporary jargon ‘transparency’, in the making of administrative decisions”.17

At 560. See also e.g. R(L) v Secretary of State for the Home Department [2008] 1 WLR 158 at para 35 per Waller LJ citing Jordan v United Kingdom (2001) 37 EHRR 52 at para 109 (“there must be a sufficient element of public scrutiny of the investigation or its results to secure accountability in practice as well as in theory”).

Whilst the judiciary has been a catalyst for transparency in respect of other branches of government, it has resisted the imposition of standards of transparency to its own practices, including the system for judicial discipline. A contrast can be drawn with other Commonwealth jurisdictions which adopted statutory schemes of judicial conduct and discipline much earlier.18

See the research commissioned by the Scottish Government in this regard: J Chalmers, Matters of Judicial Appointments, Conduct and Removals in Commonwealth Jurisdictions (2008, available at http://www.scotland.gov.uk/Publications/2008/01/04135549/0).

For instance, Canada introduced a scheme for investigation into the conduct of federal judges as long ago as 1971.19

Judges Act 1971.

In the United Kingdom it was not until 2005 that a scheme of judicial discipline was first enacted, in the Constitutional Reform Act. That scheme only applies to judicial office holders in England and Wales and to certain tribunal members who sit in Scotland. Following
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