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Institutional Independence and Accountability of the Judiciary
Lionel Cohen Lecture 2022, Jerusalem, 30 May 2022
Published online by Cambridge University Press: 11 November 2022
Extract
It is an honour to have been asked to give this Lionel Cohen Lecture deferred from 2020 when the covid pandemic was sweeping the world. It is a great pleasure to be with you at the Hebrew University of Jerusalem.
- Type
- The 2022 Lionel Cohen Lecture
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- Copyright
- Copyright © The Author(s), 2022. Published by Cambridge University Press in association with the Faculty of Law, the Hebrew University of Jerusalem
Footnotes
*
Lord Chief Justice of England and Wales.
References
1 Aristotle, Politics, Book I, 1253.a31
2 Commonwealth (Latimer House) Principles on the Three Branches of Government, November 2003, Principle IV.
3 UNGA Res 217A (III) (10 December 1948), UN Doc A/810, Art 10: ‘Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him’. See also United Nations Congress, Basic Principles on the Independence of the Judiciary, 7th UN Congress on the Prevention of Crime and the Treatment of Offenders, Milan (Italy), 26 August–6 September 1985, Principle 1: ‘The independence of the judiciary shall be guaranteed by the State and enshrined in the Constitution or the law of the country. It is the duty of all governmental and other institutions to respect and observe the independence of the judiciary’, https://www.ohchr.org/en/instruments-mechanisms/instruments/basic-principles-independence-judiciary.
4 European Convention for the Protection of Human Rights and Fundamental Freedoms (entered into force 3 September 1953) 213 UNTS 221, Art 6(1): ‘In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law’.
5 United Nations Office on Drugs and Crime, The Bangalore Principles of Judicial Conduct, 2018, Principle 1: ‘Judicial independence is a prerequisite to the rule of law and a fundamental guarantee of a fair trial. A judge shall therefore uphold and exemplify judicial independence in both its individual and institutional aspects’, and 1.1–1.6, https://www.unodc.org/res/ji/import/international_standards/bangalore_principles/bangaloreprinciples.pdf.
6 International Association of Judicial Independence and World Peace, 19 March 2008, as amended 2012, https://www.jiwp.org/mt-scopus-standards.
7 Shimon Shetreet and Sophie Turenne, Judges on Trial (Cambridge University Press 2013).
8 See Jack Beatson, The Rule of Law and the Separation of Powers (Hart 2021) for a recent concise exploration of the issue.
9 Referred to as substantive and personal independence; see Mount Scopus International Standards of Judicial Independence (n 6) Principle 2.2.
10 ibid Principle 1.1.
11 Constitutional Reform Act 2005, s 18 and Sch 6.
12 ibid s 7.
13 ibid s 61.
14 ibid s 3(7).
15 ibid s 17.
16 Tom Bingham, The Rule of Law (Allen Lane 2010).
17 Magna Carta (2015), Ch 40.
18 Holt, J.C., Magna Carta (2nd edn, Cambridge University Press 1992) 179CrossRefGoogle Scholar, and see 84, where it is noted that John incentivised his knights to join his army by offering to stay claims brought against them.
19 Magna Carta (2015), Ch 45.
20 (1607) 12 Co Rep 63 (‘the King in his own person cannot adjudge any case, either criminal, as treason, felony, etc., or betwixt party and party, concerning his inheritance, chattels, or goods etc., but this ought to be determined and adjudged in some Court of Justice, according to the law and custom of England’.
21 Jean Bodin, Les Six Livres de la République (1576) cited in Loughlin, Martin, Foundations of Public Law (Oxford University Press 2010) 452CrossRefGoogle Scholar; Locke, John, Two Treatises of Government (1690) (Cambridge University Press 1994)Google Scholar; Hamilton, Alexander, Madison, James and Jay, John, Federalist Papers (Signet 2003) No 47, 48, 78Google Scholar.
22 Montesquieu, Charles, De l'Esprit des Lois (1748) (Cambridge University Press 1989) Book XI, 6Google Scholar.
23 John Baker, An Introduction to English Legal History (Oxford University Press 2019) 179.
24 See, for instance, Senior Courts Act 1981, s 11.
25 Commissions and Salaries of Judges Act 1760, s 1.
26 ibid s 3.
27 Senior Courts Act 1981, s 12.
28 Hamond v Howell (1677) 2 Mod 218; Sirros v Moore [1975] QB 118; Re MC (A Minor) [1985] AC 528.
29 Constitutional Reform Act 2005, s 108.
30 As noted by the Consultative Council of European Judges, Opinion 10, 23 November 2007, paras 48, 65, https://rm.coe.int/168070098e.
31 Constitutional Reform Act 2005, s 7(2)(b).
32 Judicial Appointments Regulations 2013, SI 2013/2192, regs 9, 15, 21, 27.
33 [1985] 2 SCR 673, paras 27, 40.
34 ibid para 47.
35 HMCTS, Framework Document, July 2014, https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/384922/hmcts-framework-document-2014.pdf.
36 Mount Scopus International Standards of Judicial Independence (n 6) Principle 2.13 (‘The central responsibility for judicial administration shall preferably be vested in the Judiciary or jointly in the Judiciary and the Executive’).
37 Lord Chancellor's Department, ‘The Lord Chancellor's Judiciary-Related Functions: Proposals (the “Concordat”)’, January 2004, para 36.
38 See, for example, an open letter from environmental protest group Insulate Britain dated 20 April 2022, declaring the British courts a ‘site of nonviolent civil resistance’, https://www.insulatebritain.com/open-letter-to-the-uk-judiciary.
39 cf M v The Home Office [1992] QB 270, 314.
40 HL Deb 3 July 1996, Vol 573 Col 1465–1468.
41 HL Deb 7 April 1989, Vol 5050 Col 1329–1333. Lord Lane described the proposed reforms of legal services as an attempt to ‘disembowel the [legal] system’.
42 Constitutional Reform Act 2005, s 137.
43 Now see House of Commons (Disqualification) Act 1975, ss 1(1)(a), 1(2) and Sch 1.
44 Norman S Poser, Lord Mansfield: Justice in the Age of Reason (McGill 2013).
45 See the House of Lords debate on Lord Ellenborough's position as Lord Chief Justice and Cabinet Minister: HL Deb 3 March 1806, Vol 16 Col 253–284.
46 Judicial Executive Board, ‘Guidance to Judges on Appearances before Select Committees’, October 2012, para 13, https://www.judiciary.uk/wp-content/uploads/JCO/Documents/Guidance/select_committee_guidance.pdf.
47 Stanley de Smith and Rodney Brazier, Constitutional and Administrative Law (8th edn, Penguin 1998) 375.
48 Jeremy Bentham, ‘Draught for the Organization of Judicial Establishment’ in John Bowring (ed), The Works of Jeremy Bentham (William Tait 1843) Vol 4, 316.
49 European Convention for the Protection of Human Rights and Fundamental Freedoms (entered into force 3 September 1953) 213 UNTS 221.
50 International Covenant on Civil and Political Rights (entered into force 23 March 1976) 999 UNTS 171.
52 784,087 people served as jurors in 2019: Ministry of Justice, ‘Criminal Court Statistics Quarterly: January to March 2020’, 25 June 2020, 5, https://www.gov.uk/government/statistics/criminal-court-statistics-quarterly-january-to-march-2020.
53 Jack Beatson, The Rule of Law and Separation of Powers (Hart 2021) 107.
54 As noted in Cynthia Gray, The Line between Legal Error and Judicial Misconduct: Balancing Judicial Independence and Accountability (2004) 32(4) Hofstra Law Review, article 11, 4.
55 Case C-719/19, European Commission v Poland, ECLI:EU:C:2021:366, para 6.
56 European Network of Councils for the Judiciary (ENCJ), ‘Independence and Accountability of the Judiciary’, ENCJ Report 2013/2014, 13 June 2014, 4.
57 Pawel Filipek, cited in Morgane Coué, Mélanie Vianney-Liaud and Justine Pédron, ‘Judging the Judiciary: Responding to Judicial Misconduct Without Threatening Independence’, 2021, 10, https://www.ejtn.eu/PageFiles/19763/TH-2021-04%20FR.pdf.
58 CJEU, Cases C-83/19, C-127/19, C-195/19, C-291/19, C-355/19 and C-397/19 Romanian Judges Forum, 18 May 2021, ECLI:EU:C:2021:393, para 198. See also, for instance, CJEU, Cases C-585/18, C-624/18 and C-625/18 AK v Krajowa Rada Sądownictwa, 19 November 2019, ECLI:EU:C:2019:982; CJEU, Case C-791/19 Commission v Poland – Disciplinary Regime for Judges, 15 July 2021, ECLI:EU:C:2021:596.
59 As noted by Geoffrey Vos, ‘Limits of, and Threats to Judicial Independence’, 19 October 2017, Victoria University, Wellington (New Zealand)), paras 34 ff.
60 Constitutional Reform Act 2005, s 108.
61 Worcester v Georgia 31 US (6 Pet) 515; see Stephen Breyer, America's Supreme Court: Making Democracy Work (Oxford University Press 2010) 26 ff.
62 R (UNISON) v Lord Chancellor [2017] UKSC 51, [2017] 3 WLR 409, [68].