Tag Archives: Judiciary

Patrick O’Brien: When Judges Misbehave: The Strange Case of Jonah Barrington

patrick-obrienThe recent high profile arrest of a part-time recorder, Constance Briscoe, in connection with the Vicki Pryce trial gives me a tenuous topical link to judicial discipline and nineteenth century case of Sir Jonah Barrington, still the only High Court judge to have been dismissed from office. Disciplinary proceedings against a judge are relatively rare and dismissal of a permanent salaried judge is almost unheard of. Removal of a judge above High Court level is something that may only be done by Parliament according to the Act of Settlement 1701 (re-enacted in section 11 of the Senior Courts Act 1981). For judges below High Court level (such as Briscoe) it may be done by the Lord Chancellor and the Lord Chief Justice acting in concert under the Constitutional Reform Act 2005. The rules for disciplinary action short of dismissal (for example, formal reprimands) are similar. The website of the judiciary in England and Wales lists two cases in which a district or circuit judge has been dismissed since the 1980s (one, intriguingly, for smuggling whiskey). Barrington’s case deserves more than a slightly notorious footnote in textbooks.

Barrington was an Irish barrister and politician, and served as an MP in the Irish Parliament prior to the Act of Union in 1801. As a reward for political loyalty he was given a seat on the Irish Court of Admiralty in 1798 whilst still an MP but the Act of Union deprived him of his parliamentary seat, and he expended a great deal of ink in later life writing about what he perceived as the betrayal of Ireland by those who acquiesced in the union. In later life he would also write a colourful book of reminiscences detailing, amongst many other things, several instances in which he participated in duels in response to insults he suffered on the bench.

The events that led to his dismissal as a judge took a long time to come to pass. In admiralty cases in 1805 and 1806 (the Nancy and the Redstrand) Barrington took around £850 in cash for his own use. In 1810 a ship salvager asked Barrington’s court to pay £40 over to him. Barrington directed the registrar to pay it but delayed the order for two months. During this time Barrington fled to France where he continued to live for the rest of his life, never returning to Ireland. During his period in effective exile he continued, however, to receive his judges’ salary of £1,000 per annum. His judicial duties were carried on by a succession of deputies appointed by Barrington and paid only comparatively tiny sums.

Barrington’s rather brazen behaviour came to light in 1829 in the course of a general investigation into court officers in Ireland. A parliamentary Commission uncovered evidence of the alleged embezzlement of two decades earlier and also referred scathingly to the fact that Barrington “has been for more than eighteen years enjoying a sinecure salary.” Matters went before report a Commons Select Committee in early 1830. Both the Commission and the Select Committee repeatedly offered Barrington the opportunity to offer evidence in his defence but he refused to leave France or indeed to offer anything other than repeated letters insisting on his innocence. Following consideration by the Select Committee, a motion went before the Commons, sitting as a committee of the whole house, to present an Address to His Majesty requesting the removal of Barrington under the Act of Settlement. At this point it appears that Barrington began to realise the gravity of the situation and he sought through advocates in the Commons to be allowed to give evidence. This was refused, apparently because he had passed up opportunities to give evidence previously, and the motion passed.

Barrington was allowed to make submissions in the Lords debates, where matters proceeded as something approximating criminal proceedings, with formal examination in chief and cross-examination of the main witness, Barrington’s Registrar (Daniel Pineau). In the course of Pineau’s cross-examination it emerged that in relation to the 1805 case Barrington obtained the money from Pineau personally and not from the public purse. Pineau kept court funds in his own home and reading between the lines there is a suggestion that some or all of the embezzlement may have been done by Pineau himself rather than Barrington. The Registrar had a more or less absolute right to deal with court funds and so could have lent money legitimately to Barrington. Barrington’s counsel did not, however, pursue this apparent line of defence. The motion passed the Lords and Barrington was then dismissed.*

If Barrington’s case were to occur today it seems likely that, as appears to have occurred in the Briscoe case, criminal proceedings would be allowed to run their course before any attempt at dismissal. In relation to the Briscoe case, the front page of the website of the Office for Judicial Complaints stated simply that “The Lord Chief Justice and Lord Chancellor have suspended Constance Briscoe from the judiciary pending the outcome of the police investigation into the allegations against her.” In the parliamentary debates in 1830 it is emphasised that no criminal case was pursued against Barrington because of his illness and advanced age. In an equivalent modern case such deference seems unlikely and if a judge convicted of a criminal offence did not resign voluntarily Parliament would in all likelihood refer to the fact of the criminal conviction rather than seek to re-examine the evidence. But in the event that a judge tried – like Barrington – to brazen it out, or where (as in the case of a modern Irish judge, Brian Curtin) a criminal case collapses for technical reasons leaving serious charges unanswered, the example of the 1830 debates provide a useful blueprint for how Parliament could proceed.

* This argument about a possible defence is suggested by Andrew Dewar Gibb, Judicial Corruption in the United Kingdom (Edinburgh, W Green & Sons 1957).

Patrick O’Brien is a Research Associate at the Constitution Unit, University College London. 

Suggested citation: P. O’Brien, ‘When Judges Misbehave: The Strange Case of Jonah Barrington’,  UK Const. L. Blog (7th March 2013) (available at http://ukconstitutionallaw.org).

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Tom Adams: Lord Sumption and Judicial Responsibility

Lord Sumption has for some time been an important man, and very recently became more important.[1] Indeed, he was too important already on the 9th of November 2011 for Lincoln’s inn, which reached capacity long before he read the opening lines of his F A Mann lecture. The lecture concerned a big question, quite possibly the question for public law scholarship: ‘How far can judicial review go before it trespasses on the proper function of government and the legislature in a democracy?’  Not only did the lecture attempt to tackle this fundamental issue, but it did so with the stated aim of avoiding what Sumption considered to be the narrow focus of ‘the academic literature’. For this concerned itself too much with ‘the experience of modern Britain’. What was needed, in order to arrive at a satisfying answer to the question, was ‘a longer historical perspective and a broader geographical range’.

The first section of the speech did as promised and placed the question of judicial legitimacy in this broader context. France was hailed as a model of judicial restraint, at least until 1958 when the constitution of the Fifth Republic heralded the birth of the Conseil Constitutionnel. This model of deference was attributed, in part, to the fact that the Counseil d’Etat (the senior administrative court in France) has always drawn its membership ‘from the ranks of senior administrators’. By way of contrast the constitution of the United States, founded by men who were ‘suspicious of democracy’, favoured strong legal controls on the exercise of public power, controls so strong that they questioned the US’s credentials as a functioning democracy:

‘In one sense it can be said that the unspoken object of most modern democratic constitutions is to treat the people as a source of legitimacy, while placing barriers between them and the levers of power. One of these barriers is the concept of representation… But another barrier is law… France, like every other functioning democracy, has adopted the first technique but rejected the second. The United States has adopted both.’

Sumption called upon his audience to see the current debate ‘between the originalists and their opponents in the United States Supreme Court’ in this light, as ‘fundamentally a debate about the permissible limits of judicial lawmaking in a democracy’. Not then, as many would see it, as a debate about the best interpretation of the vague moral standards laid down in the constitution.[2] Originalism, for Sumption, is small-c conservative only.

What then, of Britain? Where does the UK fit in the ‘spectrum extending from France at one extreme to the United States at the other’? Sumption contrasts the ‘old orthodoxy’ with a newer wave of judicial activism. Under the old approach, the function of the judiciary was to ‘interpret and enforce law’ not to ‘decide what is in the public interest’. Under the new approach the courts have apparently taken it upon themselves to determine the public interest at the expense of politics. Sumption, as one might have guessed, prefers the old orthodoxy. R v Foreign Secretary, ex p World Development Movement [1995] 1 WLR 386 is given detailed treatment as an example of the new approach. The case concerned Section 1 (1) of the Overseas Development and Co-operation Act 1980 which reads as follows:

‘The Secretary of State shall have power, for the purpose of promoting the development or maintaining the economy of a country or territory outside the United Kingdom, or the welfare of its people to furnish any person or body with assistance, whether financial, technical or of any other nature.’

In 1993, the then Foreign Secretary, Douglas Hurd, decided to spend £316 million to help finance the Pergau Dam, in Malaysia. Money for the project had originally been promised at a time when the UK was negotiating an arms deal with Malaysia worth over £1 billion.

Both the National Audit Office and the Overseas Development Administration’s own economists had advised that the expenditure was ‘markedly uneconomic’. In fact, the project would have imposed a huge cost penalty on the Malaysian economy as compared with other alternatives. The money put forward by the UK government would, at best, offset the extra cost of the dam.  Fearing damage to the UK’s ties with Malaysia, Mr Hurd went ahead anyway. To the surprise of many the High Court held that the government had acted unlawfully in providing the money. The court held that it was ‘a matter for the courts and not the secretary of state to determine whether, on the evidence… the particular conduct was or was not within the statutory purpose.’ On the basis of relevant evidence, including white papers, guidelines and the activities of previous governments, the power in section one was to be read to license economically sound development only. The proposed investment was therefore considered to be ultra vires the section. Rose LJ had the following to say:

‘It is not, in my judgement, possible to draw any material distinction between questions of propriety and regularity on the one hand, and questions of economy and efficiency of public expenditure on the other.’

This irks Sumption. He considers the judgement ‘almost to have deliberately been framed as a rejection of [the] distinction between politics and law.’ Indeed, this would have been the case had the court considered it to be its task to consider directly the merits of the policy at hand. But the court didn’t, so it isn’t. The court decided that, on the best interpretation of the statute, efficiency was a condition of the exercise of the power granted by the relevant section. The act was to be interpreted so as to fulfil the development purpose of the legislation. It was this fact that made the assessment of the economic credibility of the policy relevant to the courts task vis. policing the bounds of authority granted to the administrative body in question.

Both the development of the principle of legality and the work of the courts’ implementation of the Human Rights Act 1998 also come under fire, principally for transferring ‘out of the political arena … and into the domain of judicial decision making’ political matters.  But neither of these powers, if exercised properly, interfere with the lifeblood of Parliamentary politics. The principle of legality requires that executive action which interferes with certain fundamental interests be expressly licensed by Parliament. In requiring Parliament to face up squarely to the exercise of politically sensitive power by the executive, this principle actively engenders political debate. The Human Rights Act, itself a political creation, specifically envisages dialogue between the courts and Parliament. Legislation which is incompatible human rights cannot be struck down by the courts. Instead, they must issue a declaration of incompatibility. The final resolution of the matter remains with Parliament. Sumption notes, in passing, that in the case of the Human Rights Act it is often said that ‘the judges are only doing what Parliament has required them to do.’ This fails to convince because ‘Parliament may do many things which undermine the democratic element of our constitution’. True enough, but this is an argument against bad politics not bad judging.

This is not to deny that Sumption makes many valuable points in his lecture. His reaffirmation of the doctrine of due deference as a means of respecting, not the idiosyncratic decisions of particular ministers but instead, ‘the constitutional separation of powers’, for example, is a welcome one. This is especially so outside of the Human Rights Act context. The point was endorsed recently by Sumption’s new colleague Lord Hope in Axa General Insurance Ltd. v The Lord Advocate, where he noted, in relation to the issue of court supervision of the Scottish Parliament, ‘the advantages that flow from the depth and width of the experience of its elected members and the mandate that has been given to them by the electorate.’

Many law students develop a strong distaste for politics and a reverence, perhaps undue, for the importance of legal process and legalistic answers. Jonathan Sumption obviously never did, possibly because he studied history. Undue reverence should not, however, be replaced by undue distaste. A fair critique of the legal aspects our constitution requires that one square up to them in all of their subtlety.

 

Tom Adams is Stipendiary Lecturer in Law, St Hilda’s College, Oxford


[1] Sumption was sworn in as a member of the UK Supreme Court on the 11th of January 2012

[2] Ronald Dworkin, Freedom’s law : the moral reading of the American Constitution (Oxford University Press 1996) 1-14

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Graham Gee: Are Executive-Judicial Relations Strained?

At one level, it seems reasonable to characterise executive-judicial relations as strained. In recent weeks, after all, concerns have been raised by senior judges, or on their behalf, on a range of matters—including (the now withdrawn) Schedule 7 of the Public Bodies Bill that would have given ministers the power to modify, merge or abolish a large number of public bodies, including the Judicial Appointments Commission (see here and here); Part 4 of the Pensions Bill, which provides that ministers may require judges to contribute to the costs of their pensions, whereas at the moment judges only contribute to the costs of benefits for their spouses and dependents (see here); as well as aspects of the finance and administration of the UKSC (see here). At the same time, the PM and Home Secretary have spoken of being ‘appalled’ by the UKSC’s 2010 decision in R(F) on the notification requirements for sexual offenders, with the PM also outspoken on the ECtHR’s 2005 ruling in Hirst v UK (No. 2) on prisoners’ votes. But, at another level, the characterisation of executive-judicial relations as strained risks concealing more than it reveals, and for three main reasons.

First, public lawyers often use shorthand when discussing institutional relationships. For example, we refer to ‘executive-legislative relations’ when discussing Parliament’s powers or the ability of Parliament to hold the Government to account. Often the implication, as Anthony King noted in an article in 1976, is that there is one body called Parliament and another called the Government, with our aim to study the relationship between the two. Yet, as King explained, if we really want to understand the various phenomena subsumed under such a broad heading as ‘executive-legislative relations’, we need to study a number of distinct political relationships (including those between and within different chambers, between Government and Opposition and between and within different political parties). King’s basic point—and, in one sense, it is a very basic point and yet, at the same time, marvellously subtle—is that shorthand such as ‘executive-legislative relations’ conceals multiple, complex relationships, each with its own dynamic. So what then do we mean by ‘executive-judicial relations’? Following King, we can take this as shorthand for distinct but sometimes overlapping relationships. For a start, there is not simply one ‘judiciary’ or one ‘executive’ relevant to UK public lawyers; rather, there are multiple judiciaries and executives in our multi-layered polity. We might speculate that relations appear strained between UK Ministers and the UKSC, and those ministers and the ECtHR. Or similarly we might have speculated that, following Cadder, relations between Scottish Ministers and the UKSC were strained. But, in each case, we ought to offer our speculative assessments whilst reserving judgment about other relationships. The point, here, is that we have to specify which executive and judiciary we have in mind when talking of strained relations.

Second, even then, we would likely have in mind relations between only some part of the executive and some part of the judiciary and only on certain issues. Are relations between the Lord Chancellor and the UKSC strained? On the one hand, the Lord Chancellor gave short shrift to the concerns raised by Lord Phillips about the funding of the UKSC and the position of its Chief Executive (see here). As Joshua Rozenberg put it, Lord Phillips ‘learned the hard way’ that a judge ‘who takes on the government in the court of public opinion is bound to end up second best’. On the other hand, reports a week later suggested that the Lord Chancellor had sent a ‘furious letter’ to the Home Secretary, copied to the PM, rebuking her (and, indirectly, the PM) for intemperate comments on the UKSC’s decision in R(F). Leave to one side the question of whether Theresa May’s comments were in fact intemperate, or whether this was simply the sort of ‘no-holds-barred constitutional politics’ that Danny Nicol suggests that we should expect under the HRA. Leave also to one side the question of how ministers ought to react, particularly on the floor of the House, where they are genuinely appalled by some judicial decision. The point, here, is that different parts of the executive have different relations with different parts of the judiciary, with clashes between ministers and judges only ever one part of the story. What is more, the same minister can have differing relations with the same part of the judiciary on different issues.

Third, strained relationships between ministers and judges are sometimes as much about some aspect of ‘executive-legislative relations’ as ‘executive-judicial relations’. Consider, for example, the timing of Theresa May’s ministerial statement on R(F) in mid-February. This statement was made 10 months after the original decision, but less than a week after the House of Commons’ debated the blanket ban on voting by prisoners, where MPs backed a motion stating inter alia that ‘legislative decisions of this nature should be a matter for democratically-elected lawmakers’. Had the Home Office long been planning to respond to the s4 declaration in R(F) in mid-February? Was someone in government pushing for the statement to be made sooner than planned in order to intensify debates about the HRA, the ECHR and a British Bill of Rights? Was the timing of the statement a sop to Conservative backbenchers riled by other aspects of the Coalition Government’s constitutional agenda, coming as it did on the same day that the Parliamentary Voting System and Constituencies Act 2011 received Royal Assent? None of this should be read as to dismiss the importance of ministerial criticism of this or that judicial decision or political debate about issues such as prisoners’ voters or the post-sentence monitoring of sexual offenders. As King noted in his article, the views of Government backbenchers matter because they are seldom speaking for themselves. Their views on knotty question such as the proper role of courts are likely to be held by some, and perhaps many, inside the Government, as well as parts of the public at large. The point is simply that, at times, it may not be best to construe apparent clashes between ministers and judges solely in terms of ‘executive-judicial relations’, but to see them as related to those larger, complex relationships that we conflate under the shorthand of ‘executive-legislative relations’.

Graham Gee is a Lecturer in Law at Birmingham University.

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