Judicial independence

The price of liberty is eternal vigilance

My piece yesterday about the US Supreme Court attracted some thoughtful responses from readers. Subscribers are always welcome to add comments below the line.

I find the relationship between legislatures, governments and judiciaries endlessly fascinating. Here are two very different examples that came to light this week.

Constitutionally repugnant

On Tuesday, Roderick Macdonald, who sat in the Outer House of the Court of Session as Lord Uist until his retirement two years ago, described two provisions in the Victims, Witnesses and Justice Reform (Scotland) Bill as “constitutionally repugnant”.

This is the bill that seeks to abolish Scotland’s “not proven” verdict and, as part of a pilot project, allow non-jury trials in rape cases. But it is not the reforms themselves that Macdonald is objecting to. It is the way in which the Scottish courts are being asked to put them into effect.

Clause 37 of the Scottish government’s bill would create a new Sexual Offences Court. Its members would be:

• the lord justice general, who is Scotland’s most senior judge (and sits as lord president when hearing civil cases); and

• the lord justice clerk, who is Scotland’s second most senior judge; and

• other trained judges to be appointed by the lord justice general. They must already be members of the justiciary (judge, temporary judge, sheriff principal or sheriff).

The lord justice general may choose to “assume office” as president of the Sexual Offences Court. Alternatively, the lord justice general can appoint someone else. The lord justice general must also appoint a vice-president to the court.

Clause 40(7) of the bill says:

The Lord Justice General may remove a Judge of the Sexual Offences Court from office.

Before doing so, the lord justice general would have to consult other judges.

And clause 41(7) says:

The Lord Justice General may at any time remove the President or Vice President from office.

Accordingly, writes Macdonald on the Scottish Legal News website,

the lord justice general is to be given the power to remove the president, vice-president or any judge of the Sexual Offences Court from office for any or no reason and without any prior procedure.

As far as I am aware this is the first time that one judge will have the power to dismiss another judge from office.

It’s worth going back to clause 40(9), which says:

Removal from the office of Judge of the Sexual Offences Court does not affect a person’s appointment to the relevant judicial office.

That refers to the person’s parallel role as judge or sheriff.

Although clause 40(9) is not replicated in clause 41, it seems clear that the power to remove the president or vice-president of the Sexual Offences Court would, again, not affect their status as judges of other courts.

Even so, argues Macdonald, this would “constitute an unwarranted interference with judicial security of tenure” and contravene article 6 of the human rights convention, which requires a fair hearing by an independent tribunal.

What’s the thinking behind these provisions? Before answering that, we should consider Macdonald’s second concern.

Clause 65 would allow the Scottish government to allow people accused of rape or attempted rape to be tried by a judge sitting without a jury. These trials could be heard in the High Court, as at present, or in the new Sexual Offences Court. The judge would give reasons for the verdict.

Judge-alone trials would be held as part of a pilot project for a specified period. The pilot would then be reviewed by the government.

In other words, says Macdonald,

the work of the pilot courts is to be subject to review by the executive and a report of that review is to be submitted to the legislature. This amounts to politicians treating the courts as forensic laboratories in which to experiment with their policies.

The origin of this provision is a review by Lady Dorian, the lord justice clerk, which reported in 2021. Members of the review team were strongly divided on whether juries should be retained in serious sexual offences cases. For that reason, they recommended a time-limited pilot.

As the Scottish government notes in paragraph 576 of its policy paper, the objectives of the pilot would be:

to assess how the process of conducting a single judge trial for rape cases is perceived by those involved in the trial process; to explore the impact of single-judge trials on the effectiveness and efficiency of managing rape trials; and to consider the impact of single-judge trials on outcomes.

Paragraph 565 of the policy memorandum says that “a pilot will provide an important opportunity to critically assess matters and gather evidence to inform the debate”. In the government’s view, it is only by studying single-judge rape trials “in the context of our justice system that we can form an objective and informed understanding of their impact in Scotland”.

Macdonald takes great exception to this.

Never before has the work of a court been subjected to review by the executive in this manner. It is reasonable to conclude from paragraph 565 of the policy memorandum that a main purpose of the review is to consider whether the work of the court has been acceptable to the executive in the percentage of convictions returned by it. A court with a limited life-span working under such constraints could not in my view be considered an independent tribunal within the meaning of article 6.

In Macdonald’s view, the two provisions

are constitutionally repugnant and constitute a serious attack upon the independence of the judiciary. It is shocking that they were ever included in the bill.

That’s as far as he goes. Taken together, though, his two concerns raise a third. It is that the Scottish government might regard a judge of the Sexual Offences Court as too willing to acquit. Would ministers quietly suggest to the lord justice general that such a judge might be replaced with one who was more prosecution-minded?

Yesterday’s Scottish Legal News reported some responses to Macdonald’s concerns. My own view is that pilot projects are not, in themselves, objectionable. And in England and Wales, we have a system in which circuit judges can be approved — “ticketed” — to try the most serious cases. But it remains essential to preserve the independence of the judiciary from interference by the executive.

Powers of the lord chancellor

The second development is completely different. In yesterday’s piece, I referred to the limited veto that the lord chancellor has over appointments to the Supreme Court. I was pleased to find that the court’s website told me where to find further information about this.

One should always try to check primary sources. A few minutes’ research reminded me that sections 28-31 of the Constitutional Reform Act had been repealed almost 10 years ago. The lord chancellor’s powers and options, now set out in regulations, are more limited than they were at first.

I raised this with the Supreme Court which, to its credit, rapidly corrected its website:

The price of liberty is eternal vigilance, as Jefferson didn’t quite say.