As judicial power around the world increased immensely throughout the 20th and early 21st century—to the point where judges can invalidate legitimately passed constitutional amendments, strike down signature pieces of legislation, vote to dissolve successful political parties, and exercise a host of other significant powers—the idea of holding judges to account has become more relevant than ever. And while the general rule regarding holding public power is that the more you have of it, the more you should be held to account for it, worldwide we’ve seen that this mantra doesn’t apply to the judiciary in a straightforward manner, given its possible impact on judicial independence. However, the way this balance of power developed is also deeply ironic. For a branch that makes such a large claim of holding the powerful to account, judiciaries remain firmly (and hypocritically) against holding themselves to account.
Much has changed since 2005 regarding judicial complaints and conduct, but a lack of external judicial accountability is also present in the UK. Although ideas of more inter-branch dialogue or heightened scrutiny regarding the content outputs of the judiciary (e.g., judgments, law review articles, and public speeches) started to gain traction in the early 2000s, as prominent academics wrote and gave speeches on the topic, other methods of accountability related to judicial appointment and discipline took priority. The last formal document on judicial accountability issued by the Judiciary of England and Wales was written in 2007, before the Supreme Court came into existence. And now it’s 2020, and look at where things stand: the Supreme Court—especially after its Miller II/Cherry judgment—seems more powerful than ever. And because of this situation, the government appears likely to propose either curtailing judicial review or making judges go through the circus-like spectacle of having US-style confirmation hearings. Neither of these proposals should go forward; or at least not before more moderate methods of accountability are attempted.
In order to properly assess judicial power in the 21st century we need to stop ignoring and start taking seriously ideas regarding reasonable and moderate judicial accountability. As Keith Ewing wrote at the turn of the century: ‘Those who would presume to sit in judgment of democracy and indeed determine its content and values must themselves be exposed to some form of democratic scrutiny’ (p 117). The challenge, of course, is how to preserve judicial independence while implementing reasonable mechanisms of accountability.
Accountability is a highly contested and ill-defined concept, but in this piece I suggest that heightened scrutiny of what Bogdanor labels ‘explanatory accountability’ (p 85) should be applied to the judiciary. Thus, while judges should not be answerable to Parliament in the same manner that Ministers are, they should answer to Parliament regarding more of the content that affects the particular way the law is shaped (possibly in relation to judgments, but certainly in relation to law review articles and public speeches).
Taking judicial accountability seriously
The most prominent method of external judicial accountability currently present in the UK is an antiquated and extreme one: removal from office. This mechanism was implemented by the Act of Settlement 1701, which established that judges could serve during good behaviour and could only be removed by Parliament. No legitimate critic of judicial power is suggesting that this invaluable protection be altered or eliminated. But a much-overlooked avenue in recognising the vast increase of judicial power is taking seriously the idea that judiciaries should be subject to some type of modest and reasonable accountability mechanism.
Accountability contains a wide range of inter-related elements, but the judicial preference leans towards passive mechanisms focused on transparency, an essential—but I believe insufficient—element in the architecture of accountability. For example, the ‘Accountability of the Judiciary’ document mentioned above lists ways in which the courts are accountable to the public and civil society. Among the ways in which the judiciary is held accountable is through annual reports—which often highlight important statistics and developments—and visiting the judiciary’s website, which contains a wealth of information. These are certainly important and provide possible avenues for accountability to take place, but they are also very passive forms of accountability that operate through mechanisms of transparency. Only one item under this heading, ‘Interviews and media briefings’, could be said to involve active external accountability, as someone—usually the Lord Chief Justice—is having to answer questions about the workings of the judiciary from someone that works outside the judiciary.
The same methods of passive accountability could be said for the recent addition of cameras in Crown Courts in England & Wales, and also the on demand broadcasting of Supreme Court judgments or hearings. These are all positive developments that further good administration of justice, but they are first and foremost elements of transparency, which provide opportunities for accountability to take place. Additionally, as Le Sueur points out, judges often point to the public dimension of much of their functions as evidence of accountability: hearings are (usually) open to the public, judgments are available to be publicly read, and reasons for decisions are listed in those judgments. This is good practice and much of it leads to scrutiny in relation to accountability (e.g., from journalists, academics and others), but they are also passive mechanisms centred on transparency.
Another aspect that often gets mentioned as a strong form of judicial accountability is the normal working of the judicial process involved in common law adjudication. For example, judges may argue that the opportunity for judgments to be overruled by higher courts is a form of accountability. No doubt this is a robust form of internal accountability, but it is also an insufficient and very siloed approach to accountability. As Shetreet & Turenne note, ‘Judicial accountability is no longer simply construed as accountability to other judges as a group sharing an ethos, particular values and skills, and through decision making, by way of appeal and review’ (p 429). Thus while the judicial process is extremely important, it is over-reliant on internal accountability structures, and for apex courts like the Supreme Court such decisions are final. However accountability for those with significant amounts of public power—which the UK Supreme Court has demonstrated it possesses—should be more than just one branch checking itself.
After enactment of the Constitutional Reform Act 2005, which implemented a more defined separation of powers, Bogdanor warned that less dialogue between Parliament and the judiciary could be harmful and lead to more inter-branch conflict (p 84). Such conflict is now before us, and it cannot merely be blamed on Brexit. As the former Attorney General recently explained, the tension has been ‘around for a very long time’.
Possible methods of accountability
Recent articles about the government’s possible changes to judicial review suggest that the problem mostly lies within the attitudes of the judiciary, and that only they can fix these problems. But that solution is contrary to the conclusions that Bogdanor, Le Sueur and others came to near the beginning of the 21st century when analysing the growth of judicial power, and how best to hold it accountable.
Both Bogdanor and Le Sueur came to agreement about one thing in relation to possible judicial accountability in the UK: having judges answer to Parliament in some form is a reasonable way to hold the judiciary accountable. Bogdanor notes, ‘there is no reason why judges should not regularly appear before Parliament, or rather before Select Committees of Parliament, after they have been appointed, to be cross-examined on their judicial philosophy’ (my emphasis). Writing in 2004 about the impending establishment of a UK Supreme Court, Le Sueur states: ‘the opportunities for routine parliamentary engagement with the top-level courts [are] too few. MPs and peers in the UK should, I believe, be encouraged rather than discouraged from making formal public comment on not just the work of the courts in general but also particular judgments’ (p 96). There is strong debate about whether particular judgments should be open for discussion, but it seems reasonable that conversation over judges’ own law review articles, public speeches, and even trends in judicial philosophy could certainly form a part of healthy inter-branch dialogue.
As Bogdanor accentuates, he is not proposing that the courts be answerable to Parliament in the form that Ministers are answerable to Parliament. Such an arrangement would undoubtedly violate judicial independence. However, he suggests that the courts answer to Parliament in some form. That is, senior judges should ‘be cross-examined on their lectures and articles in law journals, on their judicial philosophy, by… the representatives of the people in Parliament. Judges…should not object to discussing these views in a parliamentary forum, in the cause of greater public understanding’. A greater understanding of the judicial role by Parliament, Ministers, and the wider citizenry is key to upholding human rights, preserving judicial independence, and hopefully curtailing inter-branch tension. Indeed, Le Sueur’s analysis may be particularly instructive here, as he cites examples of Ministerial ‘outbursts’ stemming from court decisions. No doubt we have seen such responses as of late, both from the government and the media. However, Le Sueur concludes that ‘one reason for these hostilities may be that there are inadequate formal channels of communication between the judiciary, the executive and the legislature in the UK’ (p 98, emphasis by Le Sueur).
The simple fact is that any type of middle-ground regarding judicial accountability has been ignored and dismissed for far too long. But changes to judicial review or methods of appointment are not going to resolve the issue; in fact, such changes may make things even worse. If we’re going to be serious about discussing the appropriate use and ramifications of judicial power, then judicial accountability mechanisms should not be on the retreat, they should be on the agenda.
I wish to thank Graham Gee and Richard Kirkham for comments on a previous version of this post.
Brian Christopher Jones is a Lecturer in Law at the University of Sheffield.
(Suggested citation: B.C. Jones, ‘The Widely Ignored and Underdeveloped Problem with Judicial Power’, U.K. Const. L. Blog (25th Feb. 2020) (available at https://ukconstitutionallaw.org/))