Judging the Judges: the New Scheme of Judicial Conduct and Discipline in Scotland
| Author | James Harrison |
| Date | 01 September 2009 |
| Pages | 427-444 |
| DOI | 10.3366/E1364980909000572 |
| Published date | 01 September 2009 |
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.
The Concordat is reproduced as Appendix 6 of the Select Committee Report on the
Asp 6. The Bill was passed by the Scottish Parliament on 25 Sept 2008 and received Royal Assent on 29 Oct 2008.
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”.
Scottish Parliament,
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.
2008 Act s 1.
2008 Act s 2.
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 This latter instrument will be repealed and replaced by the 2008 Act ss 35–39 and 73.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.
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.
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.”
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.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.
See n 7 above.
As stated by Lord Sutherland inThe 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.
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.V Bogdanor, “Parliament and the judiciary: the problem of accountability” (2006 Sunningdale Lecture, available at
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:
[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.
[1994] 1 AC 531 at 564.
At 560. See also e.g.
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.
See the research commissioned by the Scottish Government in this regard: J Chalmers,
Judges Act 1971.
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