Councils to judge the judiciary
29 March 1999
Neil Addison says UK judges' appointments and disciplinary procedures should be compared and adjusted to Canadian rather than US law. Neil Addison is a barrister in Cathedral Chambers, Newcastle.
Following the "Hoffmann Affair" the issue of how judges are appointed and disciplined is again under discussion. The incorporation of the European Convention on Human Rights into UK law has also brought into question whether the present procedures, where the Lord Chancellor can remove circuit judges, recorders and magistrates are compatible with Article 6 which requires trials to be heard before "an independent and impartial tribunal".
Most of the debate seems to have concentrated on comparisons with the American system which requires that federal judges be approved by the Senate, as happened in the undignified case involving Clarence Thomas. For Britain it would be more relevant to look to Canada rather than the US for an example to adopt.
The Canadian political system is similar to Britain's, even having an unelected upper house. The courts system is similar too.
In 1982 Canada incorporated into its constitution a Charter of Rights and Fundamental Freedoms section 11(d) similar to the European Convention requirement for "an independent and impartial tribunal". After the charter was enacted several judges in Ontario accepted submissions from defence lawyers that they be disqualified from hearing cases because they were not independent as was required by the charter. This lack of independence was based on the fact that Ontario's judiciary was appointed and paid for by the provincial attorney-general who was a government minister.
In Canada judges are appointed by the federal or provincial attorney-general but only after they have been recommended by a judicial appointments committee.
Another unique feature is the existence of judicial councils which have been established by statute at both federal and provincial level. These consist of the chief justice and other senior judges acting as a corporate body. A complaint against a judge may be referred to the appropriate judicial council which will arrange for it to be investigated. The council may suspend the judge while the complaint is being investigated and may issue a reprimand or recommend dismissal. An investigation is properly handled and the accused judge is entitled to a proper hearing before any recommendation is made for his removal. Judicial councils also lay down general guidelines as to acceptable judicial behaviour.
The Canadian system contrasts with the British one where the Lord Chancellor has been described as "prosecutor, judge and executioner".
Certainly the British system, whereby the Lord Chancellor can remove circuit and district judges and magistrates and cannot renew the appointment of recorders, means that none of these can be regarded as constituting an independent tribunal as required by Article 6.
A judicial council on the Canadian model is something that needs to be established in Britain. It could consist of the Lord Chief Justice, the Master of the Rolls, two circuit judges, two lay magistrates and three others appointed by the Lord Chancellor. It could take over the Lord Chancellor's disciplinary functions and issue guidance to judges on such issues as conflicts of interest as per Lord Hoffmann.
It would be foolish to wait until the Human Rights Act 1998 comes into force and makes 90 per cent of the judiciary legally invalid.
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