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- Wig & pen<\/a><\/li>\n<\/ul>\n
23 October, 2019<\/p>\n
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\u2018Accountability is the antithesis of independence. Judges who hold their positions at the pleasure of the executive will be expected to please the executive. Which, of course, is the whole idea\u2019\n<\/p>\n<\/blockquote>\n
\nSomeone designing a constitution from scratch would not come up with our peculiar mix of common, statute and human rights law, Parliamentary precedent, written and unwritten conventions, direct and representative democracy, and heredity. Whatever you think of the outcome of the cases brought regarding the prorogation of Parliament, it demonstrates that the constitution can be opaque. Either the 11 justices of the Supreme Court, or those they overruled, who include the Lord Chief Justice, the Master of the Rolls and the President of the Queen\u2019s Bench Division, got it wrong.<\/p>\n
Such evident constitutional imperfections lead some to suggest that it should be fully written and codified in a single document. That is all perfectly rational but since there is no chance whatever of agreement being reached about what such a document should contain, irrelevant. The more practical calls, from the losing side in the recent case, are for more incremental reforms.<\/p>\n
Some of these are extremely dangerous\u2014as those promoting them used to know. Only last year Jacob Rees-Mogg, now the leader of the House of Commons, extolled the beauties of the English common law as, \u201ca human system based on precedent and historic understanding\u201d that \u201cprovides both continuity and flexibility\u201d and \u201cavoids arbitrary or bureaucratic rule\u201d.<\/p>\n
Yet when the\u00a0Supreme Court demonstrated the flexibility of the\u00a0common law, preventing\u00a0arbitrary rule by, amongst others, himself and the Prime Minister, Rees-Mogg reportedly denounced its ruling as a \u201cconstitutional coup\u201d. On the opening day of the Conservative Party conference, Boris Johnson supported calls for Supreme Court judges to be \u201cmade accountable\u201d. A desire for \u201cmore accountability\u201d sounds entirely reasonable, yet when it is applied to judges it is anything but.<\/p>\n
Accountability is the antithesis of independence. Judges who hold their positions at the pleasure of the\u00a0executive will be expected\u00a0to please the executive.\u00a0Which,\u00a0of course,\u00a0is the\u00a0whole\u00a0idea.<\/p>\n
Some of the more\u00a0populist rulers of central Europe have already travelled down this road. The Polish government, for example,\u00a0in 2017 launched a state-funded publicity campaign accusing judges of being \u201ca special caste\u201d, and, according to a Council of Europe report, \u201cportraying them as incompetent or indulging in unseemly or illegal behaviour, such as drunkenness, corruption, or petty theft\u201d. Whether or not that was true, the subsequent reforms\u00a0to the Supreme Court required\u00a0nearly\u00a0one third of the judiciary to retire\u2014unless expressly permitted to remain in office by the\u00a0president.\u00a0Far from rooting out the political legacy of communist-era justice, it would have made judges curry favour with an elected politician.\u00a0This brand of accountability was struck down by the European Court of Justice,\u00a0but concerns about attacks on judicial independence in Poland and elsewhere persist.<\/p>\n
Britain\u2019s Supreme Court judges are appointed on the recommendation of\u00a0a politically independent commission.\u00a0Nobody is seriously suggesting that they should be elected, a method of appointment that has found favour almost nowhere in the world except the United States, and even there not for Federal judges.\u00a0<\/p>\n
Instead, the suggestion has been floated that\u00a0candidates\u00a0should be \u201cvetted\u201d by Parliament at confirmatory hearings. In practice that would probably give a Government a veto over appointments. Even with safeguards, such as a requirement for a \u201csuper-majority\u201d of MPs for rejecting a candidate, the precedent would have been set that judges could be chosen on political grounds. What other purpose could such hearings have except to politicise the Court? The prime minister is not arguing that the current system produces incompetent or morally defective Supreme Court judges. His objection is that they are interfering in politics, which is to say making judgments that he does not like.<\/p>\n
Once Supreme Court judges have been selected (even partly) for their politics, governments will\u00a0be tempted\u2014as in\u00a0the United States\u2014to stuff\u00a0the court with supposedly sympathetic appointees. The new mandatory judicial retirement age of 70 could make this easier. At least US Supreme Court Justices hold office for life. Having been selected at least partly on political grounds, judges will then feel much more justified in allowing their politics to influence their judgments. In short, Parliamentary vetting would supercharge the very problem it is ostensibly meant to\u00a0address.<\/p>\n
There would be other problems. Those hoping for promotion to the Supreme Court would be under subtle pressure not to offend the authorities.\u00a0Selection for political affiliation (as vetting should be called) would soon be demanded for High Court judges too. After all, the vast majority of cases against government ministers\u2014nearly all of which are \u201cpolitical\u201d in nature to some degree\u2014are decided in the Administrative Court or the Court of Appeal. And given that there is already an acute shortage of High Court judges, do we really want to further discourage the best applicants with the prospect of what supporters of the idea gleefully describe as grilling sessions?<\/p>\n
\u201cJudicial accountability\u201d could all too easily find its way into a populist Conservative election manifesto; and there are certainly sections of the press who are all too happy to bash the judges. Those, like the Rees-Mogg of 2018, who support the courts\u2019 power to constrain arbitrary rule should oppose it. It is politicians who should be accountable. Judges should be independent.<\/p>\n
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<\/h3>\n
\n![\"\"](\"\/standpoint\/wp-content\/uploads\/2020\/07\/kearns.jpg\"\/)
American revolutions: Rewriting the language of the unheard<\/a>
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\n![\"\"](\"\/standpoint\/wp-content\/uploads\/2020\/07\/perry.jpg\"\/)
Adult entertainment? Why the normalisation of extreme porn needs to be stopped<\/a><\/p>\nWhat to read next<\/h6>\n
<\/h3>\n
\nAmerican revolutions: Rewriting the language of the unheard<\/a>
\n
\nAdult entertainment? Why the normalisation of extreme porn needs to be stopped<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"\u2018Accountability is the antithesis of independence. Judges who hold their positions at the pleasure of the executive will be expected to please the executive. Which, of course, is the whole idea\u2019 Someone designing a constitution from scratch would not come up with our peculiar mix of common, statute and human<\/p>\n","protected":false},"author":1,"featured_media":7011,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1],"tags":[],"class_list":["post-673","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-uncategorized"],"_links":{"self":[{"href":"https:\/\/ondrocks2000.com\/standpoint\/wp-json\/wp\/v2\/posts\/673","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/ondrocks2000.com\/standpoint\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/ondrocks2000.com\/standpoint\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/ondrocks2000.com\/standpoint\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/ondrocks2000.com\/standpoint\/wp-json\/wp\/v2\/comments?post=673"}],"version-history":[{"count":0,"href":"https:\/\/ondrocks2000.com\/standpoint\/wp-json\/wp\/v2\/posts\/673\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/ondrocks2000.com\/standpoint\/wp-json\/wp\/v2\/media\/7011"}],"wp:attachment":[{"href":"https:\/\/ondrocks2000.com\/standpoint\/wp-json\/wp\/v2\/media?parent=673"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/ondrocks2000.com\/standpoint\/wp-json\/wp\/v2\/categories?post=673"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/ondrocks2000.com\/standpoint\/wp-json\/wp\/v2\/tags?post=673"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}