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Developing mechanisms for judicial accountability in the UK

  • Andrew Le Sueur (a1)

Abstract

The ‘accountability revolution’ has lead to an expansion in the concept of accountability and the application of accountability practices to an ever-wider range of public authorities. In a mature democracy, those who exercise significant public power ought to hold themselves open to account, and judicial power should not be excluded from this imperative. In the UK, there are three schools of thought about accountability of judges. ‘Opponents’ argue that the notion of an ‘accountable judge’ is an oxymoron. ‘Re-conceptualists’ point out that courts already engage in a number of practices that make them accountable. The ‘radical’ claim is that new forms of accountability are needed. To understand the debate better, we need to map out types and levels of accountability. First, a distinction may be drawn between the personal accountability of individual judges and the accountability of courts as institutions. Secondly, we may differentiate formal mechanisms for securing accountability and informal, ‘non-state’ practices, including scrutiny of judgments and judges by the news media and academics. Thirdly, different levels of accountability may be identified, relating to the ‘probity’, ‘performance’, ‘process’ and ‘content’ of the judicial function. The final part of the paper considers the design of accountability mechanisms for a new UK Supreme Court.

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1. For discussion of this point, see eg R Mulgan “‘Acountability”: an ever-expanding concept’ (2000) 78 PA 555; D Oliver Constitutional Reform in the United Kingdom (Oxford: Oxford University press, 2003) ch 3; A Arnull and D Wincott (eds) Accountability and Legitimacy in the European Union (Oxford: Oxford University press, 2002) ch 1.

2. In the GCHQ case: Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, HL.

3. See http://www.royal.gov.uk, on the cost of Royal travel: ‘To improve accountability and transparency, an annual report is published which includes the income and expenditure account.’

4. ‘A Question of Trust: Lecture 3 - Called to Account’, available at http://www.bbc.co.uk/ radio4/reith2002/3 shtml.

5. Other indicators include eg how the jurisdiction and composition of a court is able to be altered, the length of office of judges, measures against the reduction of salary of judges, arrangements for the allocation of cases to particular judges, and methods of funding a court.

6. The ECtHR case law is too extensive to cite here; see eg McGonnell v United Kingdom (2000) 30 EHRR 289.

7. R Cooke ‘Empowerment and Accountability: the Quest for Administrative Justice’ (1992) 18 Commonwealth Law Bulletin 1326.

9. E Skordaki Judicial Appointments, Research Summary 5 (London: Law Society of England and Wales, 1991) p iv (emphasis added).

10. ‘The Unbalanced Constitution’ in T Campbell, K Ewing and A Tomkins (eds) Sceptical Essays in Human Rights (Oxford: Oxford University Press, 2001) p 117.

11. K D Ewing ‘A Theory of Democratic Adjudication: Towards a Representative, Accountable and Independent Judiciary’ (2000) 38 Alberta LR 708 at 725.

12. Ewing, n 11 above.

13. On the growing literature on constitutional ‘dialogue’ in the UK see eg T Poole ‘Review Article: Dogmatic Liberalism? T R S Allan and the Common Law Constitution’ (2002) 65 MLR 463; and R Clayton ‘Judicial deference and “democratic dialogue”: the legitimacy of judicial intervention under the Human Rights Act’ [2004] PL 33. The notion of dialogue is most developed in Canada (see eg P W Hogg and A A Bushell The Charter Dialogue Between Courts and Legislatures (Or Perhaps the Charter of Rights Isn't Such a Bad Thing After All) (1997) 35 0s HLJ 75, and is being adopted in Australia: see L McDonald ‘New directions in the Australian Bill of Rights debate’ [2004] PL 22. It is notable that some senior UK judges have rejected the notion that their judgments on the Human Rights Act 1998 should be regarded as a part of a dialogue with the UK Parliament: see below.

14. A particularly useful discussion is by Sir Anthony Mason ‘The Judiciary, the Community and the Media’ (1997) 12 Commonwealth LJ 11 (focusing on the position in the UK and Australia).

15. Eg for the New York Times, Linda Greenhouse who began reporting on the Supreme Court in 1978 and who won a Pulitzer in Journalism in 1998. See L Greenhouse ‘Telling the Court's Story: Courts as Communicators, Communicating About Courts’. The Alexander Meiklejohn Lecture at Brown University, 12 April 2000.

17. For further information, see http://www.abanet.org/publicedpreviewhome.html.

18. This includes a ‘Supreme Court Foreword’ written by a prominent constitutional scholar, the faculty Case Comment, and 24 Case Notes—analyses by third-year students of the most important decisions of the previous Supreme Court Term—and a compilation of Court statistics.

19. The questions of who sets the budget, and how, are of course a matter of significance in relation to judicial independence and accountability. See discussion, below, on the mechanisms for setting and scrutinising the US Supreme Court's budget.

20. Thus, the Register of Members' Interests (as at 19 May 2003) reveals in relation to Lord Bingham (the Senior Law Lord) that he is a member of several ‘public bodies’ (High Steward, University of Oxford; Visitor, Balliol, Templeton, Wolfson, St Cross and Linacre Colleges, Oxford; Chairman, Royal Commission on Historical Manuscripts; Chairman, British Institute of International and Comparative Law) and an ‘office-holder’ in two ‘voluntary organisations’ (President, Hay Festival; and President, The Seckford Foundation).

21. Eg following Lord Hoffmann's inadvertent oversight of the relevance of his association with Amnesty International in the appeal by Pinochet against an order extraditing him from the UK to Spain (in which Amnesty International intervened): see R v Bow Street Metropolitari Stipendiary Magistrate, ex p Pinochet Ugarte (No 2) [2000] 1 AC 119.

22. Eg the exchange of correspondence in 1993 between Mr Justice Woods and the Lord Chancellor about the mounting backlog of cases before the Employment Appeals Tribunal, which led to the retirement of Woods J: see HC Official Report (6th series) col 341, 24 March 1994.

23. ‘Foreword’, Supreme Court of Canada Performance Report for the period ending 31 March 1999.

24. Article 1, section 9, clause 7.

25. This description is based on my observations of the C-SPAN webcast on 13 April 2003 of the parts of the hearing in the ‘America and the Courts’ programme. The hearing took place on 9 April 2003.

26. Justice Kennedy said’ When I get into trouble I use a yellow pad‘; the more IT-reliant Justice Thomas exclaimed’ I don't have a yellow pad!‘.

27. Twice in the previous year the Court had released audiotapes on the same day as the oral hearings (in Bush v Gore and the University of Michigan admissions case). Justice Kennedy explained the reasons for this, and who had made the decision (the Chief Justice ‘who is very good about consulting us on these things’).

28. Hon J J Spigelman ‘Judicial Accountability and Performance Indicators’, 10 May 2001, available at http://www.lawlink.nsw.gov.au/sc/sc.nsf/pages/spigelman_Canada.

29. Eg the discussion of how judgments are written, who made decisions relating to release of audio tapes (and on what criteria) etc.

30. These issues are discussed below.

31. Lord Lester of Herne Hill, speaking in the debate on the Scotland Bill: 593 HL Official Report (5th series) col 1970, 28 October 1998.

32. Two revelatory books about the clerking system in the US Supreme Court caused shockwaves in the US legal system: Bob Woodward and Scott Armstrong The Brethren: Inside the Supreme Court (1978) and more recently Edward Lazarus In Closed Chambers: The First Eyewitness Account of the Epic Struggles Inside the Supreme Court (1998). They bear some comparison with the breach of accepted norms in relation to the UK Cabinet that came from the first publication of minister's diaries, notably The Crossman Diaries.

33. Murray Gleeson ‘The State of the Judicature’, Speech to the Australian Legal Convention, Canberra, 10 October 1999 (available at http://www.hcourt.gov.au). See also M Gleeson ‘Judicial Accountability’ (1995) 2 The Judicial Review 117.

34. See further LeSueur, A and Cornes, R What do the Top Courts Do? (2000) 53 CLP 53.

35. For an early comment, see A Le Sueur ‘New Labour's next (surprisingly quick) steps in constitutional reform’ [2003] PL 368.

36. Constitutional reform: a Supreme Court for the United Kingdom CP 11/03 (July 2003).

37. Traditional mechanisms for ministerial accountability are now widely regarded as ineffective. For a recent study, see B Hough ‘Ministerial responses to Parliamentary Questions: some recent concerns’ [2003] PL 211.

38. See A Le Sueur ‘Legal Duties to Give Reasons’ (1999) 52 CLP 150. I argue there that reason giving (a) enhances the ability of citizens to challenge decisions; (b) it is an exercise in self-regulation as it both ‘confines’ and ‘structures’ official discretion; and (c) where reasons state the source of legal authority for a decision, it provides a salutary reminder that the relationship of a public authority with the law is the opposite of that of a private person: every action taken by a public body must be justified by positive law.

39. Civil Practice Direction 4.5.

40. Brice Dickson in B Dickson and P Carmichael (eds) The House of Lords: its Parliamentary and Judicial Roles (Oxford: Hart Publishing, 1999) pp 137–147.

41. A Le Sueur ‘Panning for Gold: Choosing Cases for the Law Lords’ in A Le Sueur (ed) Building the UK's New Supreme Court: National and Comparative Perspectives (Oxford: Oxford University Press, forthcoming 2004) ch 12.

42. Thirty-Eighth Report from the Appeal Committee, 3 April 2003, available at http://www.parliament.uk.

43. See eg R Munday ‘“All for One and One for All”: The Rise to Prominence of the Composite Judgment Within the Civil Division of the Court of Appeal’ (2000) 61 CLJ 321; C McCrudden ‘A Common Law of Human Rights? Transnational Judicial Conversations on Constitutional Rights’ (2000) 20 Oxford JLS 499; D Robertson Judicial Discretion in the House of Lords (Oxford: Clarendon Press, 1998).

44. Their Lordships' practices in the other top-level court, the Judicial Committee of the Privy Council (where typically they spend half their time), has until relatively recently been different. Until 1966, dissenting judgments were not given (there being a single judgment of the Board) and until more recently still it was unusual for their Lordships to give separate concurring opinions.

45. ‘Collective responsibility’ in T Blackshield et al (eds) Oxford Companion to the High Court of Australia (Sydney: Oxford University Press, 2001) pp 109–110.

46. House of Lords Annual Report 2001–02, 16 July 2002, available at http://www.parliament.uk; the general significance of these annual reports is discussed below.

47. For curious reasons, we are told, among other dates, that an Appellate Committee was appointed on ‘DIE MERCURII 17° NOVEMBRIS 1999’ and that proceedings took place on ‘DIE LUNAE 27° NOVEMBRIS 2000’. Elsewhere in the English court system, the use of Latin is now discouraged. For comments, see M Berlins ‘Language of the Law’Guardian, 26 November 2002.

48. Explanatory Notes are available on the Internet at http://www.parliament.uk for Bills and http://www.legislation.hmso.gov.uk for Acts. For the background to their introduction, see Jenkins Qc, C (First Parliamentary Counsel) ‘Helping the Reader of Bills and Acts’ (1999) 149 NLJ 798.

49. See Lord Steyn in Westminster City Council v National Asylum Support Services [2002] UKHL 38; [2002] 1 WLR 2956 at [2]–[6).

50. This 1906 case is intended to be a warning to readers. In the passage referred to, Justice Brewer states: ‘the headnote is not the work of the court, nor does it state its decision … It is simply the work of the reporter, gives his understanding of the decision, and is prepared for the convenience of the profession in the examination of the reports.’ The headnote in a case referred to was ‘a misinterpretation of the scope of the decision’.

51. Hon JJ Speigelman ‘Judicial Accountability and Performance Indicators’, speech, 10 May 2001: available at http://www.nsw.gov.au.

52. See its website at http://www.ss-csc.gc.ca.

53. See Onora O'Neill's comments at n 4 and associated text above.

54. Eg High Court of Australia Act 1979, s47 ‘Annual Reports and financial statements’.

55. Eg the Spanish Tribunal Constiticional.

56. For an interesting comparative analysis of annual reports by ‘supreme audit institutions’ (eg the UK National Audit Office), see Pollitt, C and Summa, H Reflexive Watchdogs? How Supreme Audit Institutions Account for Themselves (1997) 75 PA 313.

57. See above.

58. See above.

59. See above.

60. Whether Parliament would be interested in scrutinising and debating an annual report of a Supreme Court is of course a rather different matter. The House of Commons has taken relatively little interest in systematically debating the work of the Parliamentary Commission for Administration (‘the ombudsman’) since its creation in 1967, though select committee oversight and support has been rather more encouraging.

61. ‘A Theory of Democratic Adjudication: Towards a Representative, Accountable and Independent Judiciary’ (2000) 38 Alberta LR 708 at 733.

62. Erskine May, see below.

63. Its terms of reference are similar to the other departmental scrutiny committees: ‘to examine the expenditure, policy and administration of the Lord Chancellor's Department and associated public bodies’; it is made plain that this does not extend to ‘individual cases’ or individual judicial appointments. For a general discussion of parliamentary scrutiny, see G Drewry and D Oliver ‘Parliamentary accountability for the administration of justice’ in G Drewry and D Oliver (eds) The Law and Parliament (London: Butterworths, 1998) ch 3. In September 2003, the Committee was renamed the Constitutional Affairs Committee to reflect the new name (Department for Constitutional Affairs) for the Lord Chancellor's Department.

64. See A Bradley ‘Judicial independence under attack’ [2003] PL 397.

65. David Blunkett ‘I won't give in to the judges’, 12 May 2003.

66. BBC Radio 4, ‘World at One’. Mr Blunkett said: ‘Frankly, I'm fed up with having to deal with the situation where Parliament debates the issues and the judges overturn them … I am absolutely clear that we don't accept what Justice Collins has said. We will seek to overturn it’ (quoted in 648 HL Official Report (5th series) col 878, 21 May 2003).

67. See 648 HL Official Report (5th series) col 884, 21 May 2003.

68. A Le Sueur ‘The Judicial Review Debate: from Partnership to Friction’ (1996) 31 Government and Opposition 8.

69. Since this article was written, several senior members of the judiciary gave oral evidence to the House of Commons Constitutional Affairs Committee in November and December 2003, in its inquiry into the Government's proposals to establish a new Supreme Court and reform judicial appointments in England and Wales, eg Lords Woolf, Bingham and Nicholls on 11 December 2003 (CH 48–iv).

* I first commented on some of themes in this article in my inaugural lecture ‘Making Judges Accountable’ at The University of Birmingham on 5 November 2002 and in a paper at a BIICL seminar on ‘Accountability and Independence of the Judiciary’ on 14 June 2003. Some of the comparative material used in this paper was collected in research trips funded by the ESRC (grant R00222908) and carried out under the auspices of the UCL Constitution Unit, with Richard Cornes. In 2001 I received an award from the British Academy (grant ATN 30026) for travel in connection with the project.

Developing mechanisms for judicial accountability in the UK

  • Andrew Le Sueur (a1)

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