Judges and Accountability
The judges of England and Wales are in quite a unique position. This is for a number of reasons – the full constitutional position is explained here. But, for these purposes, we do not need to know too much about the distinctions between the legislature (Parliament), the Executive (Government) and the Judiciary (Judges). One small anomaly worth a mention is the office of Lord Chancellor. Until as recently as 2003, he was simultaneously a judge, a cabinet minister and the Speaker of the House of Lords. The judicial role is now gone, as is the House of Lords role.
At the moment we are interested in exploring a tension that exists between judges qua judges, and judges qua employees of the State.
Let us consider other professions for a moment. A teacher has to do what she is told by her employer. So does a surveyor. So do all employees (doctors, to be fair do have some leeway but we’ll ignore that for a moment). In general, employees must do what they are told.
The ‘problem’ with judges is that they must, in a democracy, be independent. Fiercely independent. Judges quite often judge cases where the State, in one guise or another, is a party to those proceedings. Cases, perhaps, where the State has over-stepped its authority. Cases against councils, the NHS and so on. If judges were not independent, they would always find in favour of the state, and we would be living under a totalitarian regime!
Can we think of any other trade or profession where a humble employee can regularly tell his employer off or make decisions that cost the employer £millions?! Anyone else would be sacked!
And so we come to the first necessary quality for a judge. Judges must be BRAVE. They must resist pressure from the government. On the other hand, they will be disciplined if they stray into matters that are political, or they might choose to resign.
I hope we can all accept that there are bad lawyers, bad doctors, bad teachers, bad surveyors and so on. What happens to these guys? They get sacked, sued, or both. They are vilified, and their reputations ruined. Rightly so.
What about judges?
If a judge is negligent, incompetent, cowardly, lazy, incoherent or, perhaps, asleep, we have no recourse other than to appeal…to another judge. A High Court Judge can be sacked for bad or ‘unjudicial’ behaviour, but this has never actually been done. Probably because to do so requires a Petition from both Houses of Parliament…