This essay has just been republished in the latest edition of the European Human Rights Law Review, prefaced by a three-page Note by the Editor, Jonathan Cooper OBE which sets it in the context of today.
When I lodged it with many other papers with the UCL Judicial Studies Institute three years ago, I added an introductory note, which seems to be worth repeating now since it was written just before the start of Chris Grayling’s three-year term of office as a Lord Chancellor who appeared to lack not only any previous legal experience but also the wisdom to which I referred at the start of the final section of my essay.
I wrote then:
“This is an essay I wrote at the request of the New South Wales Judicial Commission as part of a collection of essays entitled Fragile Bastion: Judicial Independence in the Nineties and Beyond, which they published in 1997. I wrote it about a year earlier, after I had ended my term of office at the Law Commission. It was the first – and only – time I had undertaken anything quite like this, and I conducted all the research myself.
We take judicial independence so much for granted in this country that it is useful to consider that it developed in its present form only 300 years ago, and that it is only in very recent years that we have possessed a judiciary as strong as we have today. In my contacts with the judiciary of the emerging democracies in Central and Eastern Europe I have often reverted to the lessons I endeavoured to set out in this essay, particularly in the closing sections in which I described some of the developments since the Act of Settlement changed the landscape for good.
For all these years a Lord Chancellor who prided himself in being Head of the Judiciary and had no political ambitions (despite his seat in the Cabinet) protected the values identified in this essay. Since the Constitutional Reform Act 2005 came into force it was an open question whether words in an Act of Parliament, however powerfully expressed, would provide judicial independence with the same safeguards in future. “
The History of Judicial Independence in England and Wales
Published in 1997 in “The Fragile Bastion: Judicial Independence in the Nineties and Beyond”, Education Monograph No 1 by the New South Wales Judicial Commission
Republished in European Human Rights Law Review (Issue 5 2015 at pp 446-458, Sweet & Maxwell)
Introduction
I have spoken recently at conferences in Moscow and Warsaw. Today both Russia and Poland boast an impressive array of constitutional provisions designed to underpin the independence of the judiciary, but in each place I counselled that clauses in a constitution were not enough. For the rule of law to be really secure, there has to be a widespread understanding among the people of a country, of the reasons why it is so important that the judges should be truly independent of the state. And this is what this essay is all about.
Although we have exported written constitutions all over the world, in England we do not have one of our own. In default of a codified set of rules, there are four main ways in which our independence as judges is underpinned. First, we are independent of the executive and the legislature, and vice versa, and we do not get involved in political debate. Next, subject to modern rules relating to our age and our health, we cannot be removed except on an address passed by both houses of parliament. Thirdly, we are almost entirely immune from the risk of being sued or prosecuted for what we do. And, finally, we are paid large enough salaries to render us free from the sort of financial worries which might in theory fuel the risk of judicial corruption.
In a typically English way, there are grey edges to all this. In particular, our most senior judges sit in one house of the legislature, whether as law lords or otherwise, and officials within the executive arm of government, planning inspectors and social security adjudicators and so on, perform a lot of functions that purist adherents to the doctrine of separation of powers would characterise as judicial. But the broad framework is there and it commands almost universal respect. Why? Because of the lessons of English history.
(2) Administering Justice 1154-1327
The first traces of our modern judiciary can be seen emerging in the twelfth century AD. As the business of the royal household grew more specialised, it became possible to identify a small group of court officials who had particular experience in advising the King on the settlement of disputes. From that group of officials evolved the justices in eyre, who possessed what we would think of today as a mixed administrative and judicial jurisdiction. Experience showed, however, that the combination of executive and judicial functions led to great dissatisfaction — the justices in eyre came to be regarded as engines of oppression as their organisation became more refined — and the parallel development of courts composed of judges performing a solely judicial function was the one that was to last the test of time.
It was in 1178 that Henry II first chose five members of his personal household, two clergy and three lay, “to hear all the complaints of the realm and to do right.” These embryo judges were to carry out their work as part of the King’s court (in another meaning of that word), and their activities were to be supervised by the “King and the wiser men of the realm” (shades of twentieth century justice in a totalitarian state!). This was the origin of the Court of Common Pleas, and the Magna Carta prescribed that this court should sit permanently “in some certain place”, in practice at Westminster.
It should come as no surprise that this concept of justice, being ultimately administered by the King and the wise men who were in constant attendance on him, became formalised in its turn. Justice coram rege (in the King’s presence) could not be done if the King was abroad (like Richard I) or a minor (Henry III), and a new permanent court emerged, the Court of King’s Bench, or in its full medieval title, the “Justices assigned for the holding of Pleas before the King himself.” A distinction slowly emerged between these judicial proceedings before the King on the one hand, and the proceedings before the King’s Council on the other. Eventually it became possible to see the Court of King’s Bench as having a clearly defined responsibility for the correction of error in the Court of Common Pleas and for the trial of those pleas of the Crown that were of exceptional concern to the King.
These changes evolved slowly through the course of the thirteenth century and beyond. Even in the middle of the fourteenth century, under Edward III, there could on occasion be extremely close collaboration between the Court of King’s Bench and the King’s Council, and the same case might easily move between those two bodies and then into a Parliament of the Council. The effect of all this was that the judges abandoned, by slow degrees, the wide discretion they had become accustomed to exercise when they had been advising the King as if they were sitting under a royal palm tree: and the origins of the modern appellate jurisdiction of the House of Lords can be traced back to the time parliaments started exercising some of the discretionary powers the Court of King’s Bench had given up. By now, a third common law court of justice, the Court of Exchequer, had emerged as part of the process of splitting off the fiscal and financial procedures of the Royal Household to a specialist corps of officials.
(3) The First Judges — Their Origins and Difficulties
So much for the framework for administering justice that evolved between the accession of Henry II (1154) and the death of Edward III (1377). Who, then, were the judges and what were the early problems they faced?
As I have already said, the first judges were drawn from a comparatively small group of royal clerks, and they were often headed by a justiciar who combined civil, judicial and military duties. Like most of the clerks and officials attached to the King, they were technically clergy, and thus they were able to benefit from appointment to rich benefices — a regular way of providing for civil servants in the Middle Ages when the church was rich and the King comparatively poor. Judicial salaries were paid irregularly: although his royal pay cheque was due at Easter and Michaelmas each year, one Chief Justice of the King’s Bench, Roger of Brabazon, was paid by the King on only four occasions between 1294 and 1306.[1] This feature of judicial life led to the judges being heavily dependent on other sources of income, and by the middle of the fourteenth century many of them were pensioners of the great abbeys and the great men of the day. One commentator has observed:
“In the middle ages everyone took bribes and few thought the worse of their neighbours on that account”[2].
Occasionally, however, things went too far. In the middle of the thirteenth century both Bracton and the baronial opposition to the King were openly accusing the judges of both ignorance and corruption, and under Edward I (1277-1307) steps were taken to address both these evils. A commission of inquiry into judicial corruption in 1289 led to the removal of two out of the three judges of the Court of King’s Bench and four out of the five on the Common Pleas side. At the same time, the King instituted the reforms that led to the creation of the Inns of Court as centres of legal education, supervised by the judges, and bolstered the tradition by which judges were appointed from members of the Bar and not, as in the rest of Europe today, from a separate career stream.
Problems over judicial corruption did not, however, go away. In 1346 the judges were obliged to swear that
“they would in no way accept gift or reward from any party in litigation before them or give advice to any man, great or small, in any action to which the King was a party himself”[3].
At the same time their salaries as judges were increased, presumably to compensate them for their loss of alternative sources of income. Despite all this, in 1350 the Chief Justice of the King’s Bench, William de Thorpe, was dismissed and sentenced to death for bribery, although he was later pardoned and given a less prestigious judicial job.
(4) A Changing Notion of Judicial Office
This period of judicial history saw, too, the start of another set of problems. In 1340 a financial crisis compelled the King to suspend the war with France three years after his victory at Crecy. When he returned to England a fourteenth century equivalent of Harold Macmillan’s “night of the long knives” saw the dismissal of one of the Chief Justices and three other judges in addition to the sacking of more obviously political officers of state. The judges were all restored to office fairly soon, but this incident illustrated the problems that were likely to arise if judges were treated as if they were politicians. At the same time some contemporary judicial dicta show how the judges’ conception of their own role was changing (“we will not and cannot change ancient usages”: “statutes are to be taken strictly”[4]). In other words, parliament, not the judges, ought to be the main engine for law reform. But nobody was yet suggesting that the judges as such were or ought to be outside politics, and for ten years during Edward III’s reign the Chancellorship was held by common law judges.
In 1387 however, a bigger crisis blew up. Richard II sought the judges’ views on the legality of a parliamentary commission which had been set up with powers that virtually superseded the normal functions of the King, and six judges, headed by Tresillian CJKB, advised the King that the commission was invalid and traitorous. The judges who gave this advice (who included the two Chief Justices and the Chief Baron of the Exchequer) were all impeached, convicted and sentenced to death. In the event only Tresillian CJ was hanged, and the rest were banished to various parts of Ireland.
It is hardly surprising that after this unhappy episode there was a very long period of judicial calm. The practice of the law became increasingly specialised and technical, and for the 200 years that led up to the death of Queen Elizabeth in 1603, the judges hardly ever impinged on the political life of the country. Although they were removable at the King’s pleasure, only the Roman Catholic Queen Mary ever exercised this power, during the turbulent period that surrounded her accession to the throne in 1553. A clear indication of this new found judicial discretion is seen in the response the judges gave to the House of Lords during the Wars of the Roses a hundred years earlier. When invited to give a decisive opinion on the legality of the Duke of York’s claim to the throne, they replied that it was not for them to decide such high matters of policy: it was rather a matter for the lords who were of the King’s blood.
(5) Separation of Powers — Early Signs
The Tudor period also saw the distancing of the judges from the business of the Privy Council. Except for the Chief Justice in the short reigns of Edward VI and Mary, no judge was a member of that body between 1540 and 1599, and the separation of the Star Chamber from the Privy Council under Tudor Kings showed an early understanding of the importance of the separation of executive and judicial power.
There were, however, other events in this long period of judicial quietism that sowed the seeds for the explosions of the seventeenth century. By the fifteenth century it was generally accepted among English common lawyers that the law was a rule of conduct which bound everyone in the state including the King. This was not believed to constitute any dilution of the royal power: instead, it was a necessary limitation on the King’s power to do evil. As Bracton had earlier put it,
“the King ought not to be subject to man, but to God and the law, because the law makes the King.”[5]
The Reformation, however, saw a significant change in all this, since it led to a divergence of view as to what was, and what was not, commanded by the law of God (or of nature), and the state was now taking over from the church the power to determine the content of those laws.
And it was with the Reformation that the Tudor monarchs assumed the very wide powers of the Pope to suspend or dispense with laws in the ecclesiastical sphere. While the legislature was establishing the relationship between church and state on a wholly new basis, a concomitant effect of the changes was that the power of the King was being indirectly enlarged, because the one external restriction on the King’s prerogative power to suspend or dispense with such laws was now removed.
Although it was generally a quiet period so far as judicial affairs are concerned, from time to time during Tudor times the judges refused to obey royal commands if they judged them to be contrary to the law. They also maintained their right as against the Council to interpret the law freely and independently. In particular, in 1591 a unanimous opinion of the judges contained both a protest to the Council against the practice of imprisonment without cause and a statement of the law that was intended to limit the royal prerogative in the future. In general, however, the hallmarks of the sixteenth century were a strong monarch, a subservient parliament and a non-interventionist judiciary. The precise nature of the relationship between the King as principal law maker, on the one hand, and the judges as interpreters of English law, on the other, remained unresolved.
(6) Foundations of a Modern Judiciary
It was the tumultuous events of the seventeenth century that were to lay the foundations of the modern judiciary. In 1601 judges held office at the good pleasure of the Crown (durante bene placito) and it was the good pleasure of the Stuart Kings to sack their judges if they disapproved of their judgments. In 1701 the Act of Settlement gave judges tenure for life. The history of the century identified clearly the need to make a distinct separation between the executive, lawmaking and judicial powers of the state, although it was not until the middle of the next century that Blackstone was to articulate the governing principles in their modern form. How did all this happen?
The century began with a period of creative tension. Sir Edward Coke (CJCP 1606-1613, CJKB 1613-1616) had been a very strong defender of the royal prerogative as a law officer under Elizabeth I. As a Chief Justice under James I, however, he came to champion the supremacy of the common law against the royal prerogative. In Fuller’s Case[6] he disputed the King’s claim that he possessed the power to withdraw a case from the courts: in the Case of the Prohibitions[7] he reaffirmed Bracton’s dictum that the King was subject to God and the law: and in the Case of the Proclamations[8] he denied that the King was entitled to change the common law or to create any new offence by proclamation. In Peacham’s Case[9] incredibly (by modern standards), Sir Francis Bacon, as Attorney General, sought the opinions of the four judges of the King’s Bench separately. Three of them expressed the view that Peacham had committed treason. Coke CJ, for his part, told Bacon that the “auricular taking of opinions” was contrary to the custom of the realm, and that Peacham was not guilty. The majority view was good enough for the King, and Peacham was indicted and convicted.
Sir Edward Coke was dismissed in 1616, and for the next 25 years the judges remained firmly under the throne in a most unlionlike posture. Indeed the Chancellor told Coke’s successor, Montague, when he was sworn Chief Justice of the King’s Bench, that his predecessor’s fate was
“to be a lesson to be learned of all, and to be remembered and feared of all that sit in judicial places”[10].
During the next reign, Charles I dismissed two of his Chief Justices and suspended a Chief Baron of the Exchequer from office. He also got into the habit of putting questions to the judges about the legality of what he proposed to do: the fear of instant dismissal exposed them very frequently to the temptation of giving him the answer they knew he wanted.
The decision of a majority of the judges in 1638 in favour of the imposition of ship money as a method of raising revenue without parliamentary sanction was the final straw for the parliamentarians, and three years later some of these judges were impeached: shades of 1387 all over again. In 1642 Charles I was coerced to agree to the appointment of judges “during good behaviour” (quamdiu se bene gesserint), and for the next third of a century political pressure was taken off their shoulders. The salaries of puisne judges were raised from under £200 to £1000 a year in 1645, and on the restoration of the monarchy in 1660 all the judges were kept in office — and there were some very high quality judges among them.
(7) A Monarch’s Power to Dispense with the Law
Things were to change, however, and to a modern judge like myself the history of the judiciary between 1674 and 1688 makes extraordinary reading. There were then only 12 judges, four in each of the common law courts. In 1668 the system of appointments “during pleasure” had been unobtrusively reintroduced, and in the last 11 years of his reign Charles II sacked 11 of his judges. Not to be outdone, his brother James II sacked 12 in three years.
Because of the political partialities of historians, particularly Macaulay, it is not easy to form a balanced view of the period. But there can be no doubt at all that the overall quality of the judiciary declined, and the quality of justice itself was at risk if judges were so much at risk of losing their jobs if their judgments did not find favour with the King.
The main bone of contention, of course, was the later Stuarts’ assertion of the suspending and dispensing power of the monarch: they maintained that they could dispense with a law in individual cases or if necessary suspend its effect more generally. For the most part the two Kings were concerned to secure a measure of toleration for Roman Catholics, against virulent parliamentary opposition. Denied express parliamentary powers to suspend or dispense, they turned back to the royal prerogative and this placed the judges in the centre of a political whirlwind. There was, for them, the added difficulty that the relevant legal principles were obscure and, if anything, favoured the King. Charles II eventually abandoned his efforts to exercise his prerogative, against persistent parliamentary opposition, but James II returned to this cause with a vengeance ten years later.
(8) Subservient to the King
This was a very unhappy period in the history of the English judiciary. Parliament understandably saw the judges as the subservient tools of the King, and the King, seeking to rule without parliament, saw the control of the judiciary as an essential element of royal power. This is not to say that all the judges in Charles II’s later period were of poor quality. On any showing, though, Scroggs CJKB (“his installation speech was a model of obsequious loyalty”[11]) and Jeffreys CJKB (“he had a limited knowledge of the law and rose to prominence because of his strict adherence to the court party”[12]) were thoroughly bad appointments, at all events so far as judicial merit was concerned. It is noteworthy, however, that when in 1689 parliament investigated the judgments of the Restoration period, it found nothing earlier than 1680 worthy of attack.
The dilemma for the judiciary was that politics and the law were more closely associated in this period than at any other time in modern English history. It is very strongly arguable that the leading decision in Godden v Hales[13], to the effect that King James II’s power to dispense with the Test Act was practically unlimited, was correctly decided as a matter of law. This did not, however, remove the popular perception that the judges were lackeys of the King, an impression strongly reinforced by Chancellor Jeffreys’ speech when Herbert was appointed Chief Justice of the Court of King’s Bench —
“Be sure to execute the law to the utmost of its vengeance upon those that are now known, and we have reason to remember them, by the name of Whigs; and you are likewise to remember the snivelling trimmers; for you know what our Saviour Jesus Christ says in the Gospels, that they that are not for us are against us”[14].
Three hundred years later, the idea that a judge should be concerned whether someone in his or her court is “one of us” is absurd.
But even James II’s policies in relation to the replacement of judges failed to produce a wholly subservient bench. In the case of the Seven Bishops (1688), in which defence counsel included a former Chief Justice (Pemberton), a former puisne judge (Levinz) and two recently sacked law officers (Sayer and Finch), only one of the four judges (the Catholic Allibone) solidly supported the King’s view. None of them now asserted that the King had a suspending power, and Powell J spoke out very strongly against the existence of any such power in his address to the jury —
“If this be once allowed of, there will need no parliament: all the legislature will be in the King, which is a thing worth considering, and I leave the issue to God and your consciences”[15].
The following morning the jury acquitted the Seven Bishops to popular acclaim: Powell J, for his part, was sacked.
(9) Underpinning independence in a very public way
This long constitutional conflict was all about power. Where did sovereign power reside? What was, or should be, the source of supreme law? What power did the sovereign have to dispense with the law? To whom were the judges responsible? The efforts, first of the unelected judges under Coke, and then of the elected parliament, to harness the powers of the Crown, led eventually, and unexpectedly, to the assertion by parliament in 1688 of sovereign power, faute de mieux. They also led to parliament’s recognition of the importance of underpinning the principles of judicial independence in a very public way.
On the day after the House of Commons resolved that King James II had abdicated, a parliamentary committee drew up Heads of Grievances to be presented to the new King. This document contained the following items —
“for making judges’ commissions quamdiu se bene gesserint; and for ascertaining and establishing their salaries, to be paid out of the public revenue only; and for preventing their being removed and suspended from the execution of their offices, unless by due cause of law.”
It has been suggested that these basic ground rules for judicial independence were omitted from the Bill of Rights (1689) by an oversight. However that may be, William III respected the constitutional independence of his judges, and in due course these rules were enacted in much the same form in the Act of Settlement (1701) and they have remained in place ever since.
(10) Adequate Salaries for Judges
This reference to judges’ salaries takes me back to another theme of this essay. Although Bacon’s fall from office as Lord Chancellor in 1621, for accepting gifts from litigants, was the best known example of judicial corruption, it was not an isolated instance. In the middle of the sixteenth century Bishop Hugh Latimer had inveighed against judicial bribe taking, and in the same year as Bacon was dismissed, a judge (Sir John Bennett) was impeached and convicted of bribery in connection with the probate of wills. Twenty years later the charges on which Lord Keeper Finch was impeached included two charges of judicial corruption which dated back to the time when he was Chief Justice of the Court of Common Pleas. In 1641, too, the House of Commons ordered John Pym to include in the Grand Remonstrance a clause attacking the buying and selling of judicial office as being “among the causes and remedies of the evils of this Kingdom.” The remedy for judicial corruption was perceived to be adequate pay for judges out of the public revenue, openly declared, and I have already referred to the pay rise they received in 1645.
(11) Immunity from Suit — A Buttress for Autonomy
Immunity from suit is often mentioned as one of the buttresses supporting the independence of the judiciary. In Sirros v Moore[16] the Court of Appeal went back to Stuart times to find the guiding rules. In the Marshalsea case[17] Sir Edward Coke made it clear that lower courts would lose this immunity if they strayed outside their jurisdiction.
In that case the judge of the Court of the Marshalsea had awarded a money judgment on a civil debt, and when the judgment debtor did not pay, he had ordered the surety to be arrested and detained for three months. In fact his court had no jurisdiction to entertain the case at all, and the Court of Common Pleas awarded the surety damages for false imprisonment against the plaintiff, against the officer who did the imprisoning, and against the judge himself.
Sixty years later, however, in Hamond v Howall[18] the same court said that this principle did not extend to superior courts. One of the jurymen who had been fined and imprisoned by the Recorder of London for finding the Quakers, William Penn and William Mead, not guilty of unlawful assembly brought an action for false imprisonment against the Lord Mayor and Recorder of London, but the Court of Common Pleas rejected the suit. No authority had been urged, it said, of an action brought against a judge of record for doing anything quatenus a judge —
“though [the defendants] were mistaken, yet they acted judicially, and for that reason no action will lie against the defendants”[19].
(12) Separation of Powers — Early Doctrines
It is hardly surprising that the constitutional turmoil of the seventeenth century provided a field day for political philosophers. Early doctrines of the separation of powers identified the need to separate the legislative and the executive functions of government, if the abuse of governmental power was to be restrained effectively, but for this purpose the judicial function was subsumed within the executive. In the last decade of the century John Locke saw the “legislative, executive and federative” powers as the powers which had to be separated when he justified the Glorious Revolution of 1688 in his Second Treatise on Government. He paid scant attention to the judicial power.
It is the French writer Montesquieu who is commonly treated as the founder of the modern doctrine of separation of powers, and it is certainly correct that in his description of the English constitution in the Spirit of Laws (1748) he distinguished the legislative, executive, and judicial functions —
“Nor is there liberty if the power of judging is not separate from legislative power and from executive power. If it were joined to legislative power, the power over the life and liberty of the citizen would be arbitrary, for the judge would be the legislator. If it were joined to executive power, the judge would have the force of an oppressor.
All would be lost if the same man or the same body of principal men, either of nobles or of the people, exercised these powers: that of making the laws, that of executing public resolutions, and that of judging the crimes or the disputes of individuals.”
Montesquieu, however, had some rather odd ideas about how judicial power was executed in England. Drawing, perhaps, on a superficial understanding of the way the jury system worked he saw this power being exercised by a whole series of petty juries —
“people drawn from the body of the people at certain times of the year in the manner prescribed by law to form a tribunal which lasts only as necessity requires.”
It was Blackstone,[20] writing 17 years later in the first book of his Commentaries on the Laws of England, who put flesh on the Montesquieu skeleton —
“In this distinct and separate existence of the judicial power in a peculiar body of men, nominated indeed, but not removable at pleasure by the Crown, consists one main preservative of the public’s liberty which cannot subsist long in any state, unless the administration of justice be in some degree separated both from the legislative and also from the executive power.
Were it joined with the legislative, the life, liberty and property of the subject would be in the hands of arbitrary judges, whose decisions would then be regulated only by their own opinions and not by any fundamental principles of law: which the legislators may depart from, yet judges are bound to observe.
Were it joined with the executive, this union might soon be an overbalance for the legislative … Nothing is more to be avoided in a free constitution than uniting the provinces of a judge and a minister of state.”
It was unquestionably the English experience, crystallised in the thinking of Montesquieu and Blackstone, that inspired the founding fathers of the Constitution of the United States when they came to draft Article 3 of that Constitution. This identified a separate judicial power, to be vested in a Supreme Court, and also in inferior courts to be established by Congress, and gave the judges of all those courts two entrenched rights: a right to hold their offices “during good behaviour”, and a right to receive compensation for their services at stated times “which shall not be diminished during their continuance in office.” It was recognised that immunity from removal from office would not count for very much if the executive branch of government was at liberty to reduce a judge’s pay if it did not like his or her judgments.
Codifying the constitution, however, has never been the English way of doing things, and whatever Montesquieu and Blackstone may have said, a rigid division between judicial, legislative and executive powers never in fact took place in this country. Lord Mansfield CJ was in the Cabinet between 1757 and 1765, and as late as 1806 Lord Ellenborough CJ was a member of that body. The government of the day defended the appointment by saying that
“we take not our principles of the English constitution from the theories of Montesquieu and Blackstone, but from precedents, and it was idle to talk of the separation of powers”[21].
More recently Lord Cave was Home Secretary for a couple of months at the end of the First World War when he was also a serving Lord of Appeal in Ordinary.
More significantly, serving judges have remained in the House of Lords, the second house of the legislature, right up to the present (although by convention they do not take part in party political debates), and some judges sat in the House of Commons from time to time in the eighteenth century. Indeed the Master of the Rolls continued to sit in that House until the Judicature Acts in the early 1870s. The anomalous position of the Lord Chancellor, embodying in one person the executive, legislative and judicial powers of government, is of course well known.
Today we have nearly 150 senior judges in England, and through modern eyes the English judiciary in the eighteenth and early nineteenth century was tiny. Until 1813 the Lord Chancellor and the Master of the Rolls shared the work of the Court of Chancery between them, and there were only 12 common law judges, four in each court, up to 1830. The close relationship between Bench and Bar, fostered by the Inns of Court, helped to maintain professional standards, and because the judges had a permanent presence in Westminster Hall they played a significant, if modest, role in government. They advised the House of Lords in its judicial functions, and they reviewed private Bills of Parliament, and as Robert Stevens[22] has recently written, they were significant men in society in their own right. England had had its revolution, and the upsets of the Stuart period were very firmly in the past.
(13) Supplements to Judicial salaries
One problem, however, had not been finally resolved. The reforms to judicial pay in the seventeenth century had not affected the right of some judges to receive a supplementary income from the sale of offices in their gift. In 1693 the three puisne judges of the Court of King’s Bench upheld the right of their Chief Justice to the very valuable sinecure office of the chief clerk of the King’s Bench, and the sale of offices was at the heart of the last great English judicial scandal. Lord Chancellor Macclesfield increased the honorarium charged by his predecessors for the sale of the office of Chancery Master by so much that newly appointed Masters felt obliged to recoup the premium they had had to pay the Lord Chancellor from the litigants who appeared before them. Sometimes they would delay cases and then pocket a fee for expediting them again, and sometimes they would help themselves from the funds that were held in court under their tutelage. This was all regarded as going much too far, and Lord Macclesfield was impeached, convicted and fined £30,000.
But this did not put an end to the flow of money into judges’ private pockets from fees and payments on the sale of offices. Although the salaries of puisne judges were increased in 1759, 1779, 1799 and 1809 as the value of money altered, a serious problem lingered on, and in 1810 parliament appointed a commission to inquire into the sales of offices in the law courts. One effect of this inquiry was that puisne judges’ salaries were more than doubled in 1825 (from £2400 to £5500) to compensate them for the removal of their income from litigants’ fees and other perquisites. This tax free annual salary was trimmed to £5000 in 1832, and it then remained at that level, although subjected to income tax in 1873, for over one hundred years. This fact speaks volumes for the stability of money and for the low levels of income tax in England between the Great Reform Bill and the economic crisis of the early 1930s. Indeed, at the end of this period, the Government put pressure on the judges to agree to a reduction in their salaries in accordance with its then policy of calling for national sacrifice to combat the effects of the depression. It got rather a dusty answer from a body of government servants who had not had a pay rise for 100 years.
(14) A Modern Act of Settlement
Central to the independence of the judiciary is the clear separation of judicial power from executive and legislative power, and the virtual irremovability of the higher judiciary, except for reasons of health and age. Section 11(3) of the Supreme Court Act 1981 is the modern incarnation of the rule introduced by the Act of Settlement —
“A person appointed to an office to which this section applies shall hold that office during good behaviour, subject to a power of removal by Her Majesty on an address presented to her by both houses of parliament.”
So far as the law lords are concerned, similar provision was made in s 6 of the Appellate Jurisdiction Act 1876. These are not entrenched provisions of the English Constitution, and in theory the House of Commons could force through a change to this rule on its own, subject to the limited delaying power afforded to the House of Lords under the modern Parliament Acts. But in England, constitutional conventions are believed to be more durable than entrenched clauses in a written constitution.
The power given to both houses of parliament in 1701 to achieve the removal of a judge has only been exercised once, and financial peculation[23] was at the root of that early nineteenth century scandal. Sir Jonah Barrington, a judge of the High Court of Admiralty in Ireland, was removed from office by this route in 1830 after being convicted of appropriating for his own use funds paid into court. The nearest an English judge may have got to this particular fate is to be found in the debate in the House of Commons in 1906. In this instance time was found, at the request of 347 members of parliament, to debate a motion to consider the conduct of Grantham J in connection with the trial of the Yarmouth Election Petition. Although very strong views were expressed during the debate about the judge’s political prejudices, it was generally considered that the debate had served its purpose and that the matter need be taken no further: the motion was therefore withdrawn without a vote.
Although the judges were firmly removed from party politics a tradition lingered long into this century that competent law officers could expect promotion to senior judicial office: indeed, only two Chief Justices in the nineteenth century (Lord Tenterden CJKB and Erle CJCP) were not former law officers. This tradition is now dead.
(15) The Legislature and the Judiciary — Maintaining Functional Distances
Judges are shielded to some extent from criticism in parliament in connection with their day to day conduct of judicial business by the rule that charges against a judge can be made only on a substantive motion on which a vote will be taken. This principle was illuminated by a ruling of the Speaker of the House of Commons in December 1973 to the effect that reflections on a judge’s character or motives, or charges of a personal nature, or any suggestion that a judge should be dismissed, can be made only on such a motion. In July 1977, however, the Speaker qualified this ruling by making it clear that the rule was not as restrictive as many members of parliament might think. It was not necessary to have a substantive motion before the House to allow MPs to argue that a judge had made a mistake or that he was wrong, and
“the reasons for these contentions can be given within certain limits, provided that moderate language is used”[24].
The law and custom of parliament also includes a sub judice rule which prohibits parliamentary consideration of matters currently before the courts.
In turn, the courts may not question what takes place in parliament. Article 9 of the Bill of Rights 1689 provides that
“the freedome of speech and debates or proceedings in Parlyament ought not to be impeached or questioned in any court or place out of Parlyament”,
a provision of which Lord Browne-Wilkinson has recently said in a judicial capacity that
“it is well established that the article prevents a court from entertaining any action against a member of the legislature which seeks to make him legally liable, whether in criminal or civil law, for acts done or things said by him in parliament”[25].
One modern commentator on constitutional law, Professor Turpin, has written in this context that the independence of the judiciary rests on a foundation of legal rules, conventions and the law and custom of parliament. It is for this reason that I believe that there always needs to be a widespread public understanding of the reasons why it is so important that the judges should be truly independent of the executive functions of the state, because if these reasons are not understood, legal rules, conventions, and the law and custom of parliament can all be changed, and we will be back in the constitutional morass from which, in England, we were rescued in 1688.
This is not to say that every detail of the present arrangements needs to be preserved. One case where change might be thought to be long overdue, for instance, might be the detail of the rules underpinning judicial immunity from suit. In the nineteenth century the reasons for the rule were explained by Lord Tenterden CJ in Garnett v Ferrand[26] in these terms —
“This freedom of action and question at the suit of an individual is given by the law to the judges, not so much for their own sake as for the sake of the public, and for advancement of justice, that being free from actions they may be free in thought and independent in judgment as all who are to administer justice ought to be.”
And in Sirros v Moore[27] Lord Denning MR returned to this theme. In relation to acts performed by a judge within his jurisdiction he said —
“Ever since the year 1613, if not before, it has been accepted in our law that no action is maintainable against a judge for anything said or done by him in the exercise of a jurisdiction which belongs to him. The words which he speaks are protected by an absolute privilege. The orders which he gives, and the sentence which he imposes, cannot be made the subject of civil proceedings against him. No matter that he was under some gross error or ignorance or was activated by envy, hatred and malice, and all uncharitableness, he is not liable to an action.
Of course if the judge has accepted bribes or been in the least degree corrupt, or has perverted the course of justice, he can be punished in the criminal courts. That apart, however, a judge is not liable to an action for damages. The reason is not because the judge has any privilege to make mistakes or to do wrong. It is so that he should be able to do his duty with complete independence and free from fear.”
Ten years later, in Re McC (A minor)[28] Lord Bridge made it clear that if a judge acts in bad faith by doing what he knows he has no power to do, he is liable in damages. But he upheld the general rule that a judge acting within his jurisdiction is not liable even if he acts maliciously. He defended this rule by saying that —
“if one judge in a thousand acts dishonestly within his jurisdiction to the detriment of a party before him it is less harmful to the health of society to leave that party without a remedy than that nine hundred and ninety nine honest judges should be harassed by vexatious litigation alleging malice in the exercise of their proper jurisdiction.”[29]
This is the judge made common law rule, authoritatively restated by the House of Lords ten years ago. But it would not be the end of the world if this very wide immunity were to be trimmed. In his thoughtful book on Judges, David Pannick QC has said that the idea that a man who has an arguable case that a judge has acted corruptly or maliciously to his detriment, should have no cause of action against the judge is quite indefensible,[30] and it is hard to disagree.
(16) Contemporary Pressures on Judicial Independence — A Cautionary Note
So much for history. I have been asked to finish by saying something about the contemporary English scene. I have already described the rules and conventions which provide, by and large, for a judiciary which is generally perceived to be independent, free of money worries and of worries about being sued, prosecuted or sacked, and visibly removed from the party political maelstrom. The details of all this can be found in any modern English text book. It may be more interesting in an Australian context if I say something about contemporary pressures that are likely to pose strains on the fairly comfortable relationships which have existed for many years in England between the judiciary and the two other main arms of the state, and which could call into question, unless considerable wisdom is shown on all sides, certain aspects of the rules underpinning judicial independence.
The first lies in the increase in effective judicial power. The Court of King’s Bench always had a supervisory jurisdiction which it policed with the three great prerogative writs and other judicial tools, but these remedies were not always accessible, and the modern remedy of judicial review has transformed the judges’ powers to set aside decisions which contravene the law. The boundary marks between what is lawful and what is unlawful are not, however, always very easy to discern, and anxiety that the judges might cross the three hundred year old boundary between courts and parliament surfaced last year, in the dissenting speeches of Lord Keith and Lord Mustill, in the litigation concerned with the legality of the new criminal injuries compensation scheme.[31] These anxieties are quite widely held and will not readily go away.
Secondly, there is Europe. Some think that it is bad enough that English judges now have power to set aside primary legislation which does not comply with the Treaty of Rome: the European Convention of Human Rights introduces an entirely new ball game. Although the Convention is not yet part of English national law, the United Kingdom is bound by it internationally, and it hovers over our shoulders every time we decide a point with Convention implications. In the recent case about homosexuals and the armed services, the Court of Appeal said that it must not guess what the result at Strasbourg might be,[32] but it is getting increasingly difficult for the judges to operate coherently now that the provisions of the Convention are so widely understood. If the Convention is imported into our national law, English judges will inevitably be taking more and more decisions that are seen to have a political dimension.
Thirdly, there are the question marks about the efficiency and effectiveness of modern government. A judge must not enter into this debate, but it is evident that although the discipline of the party whip has probably achieved greater executive control over the legislature than ever before, legislative time is limited, and the new tendency for ministers to exercise their powers through semi-autonomous executive agencies has introduced new elements into the constitutional triangle about which the judges might conceivably have some unwelcome things to say one day.
Fourthly, in a fast moving scene, questions are now repeatedly being asked about the identity, the ability and the origins of English judges. The tradition of recruitment from the ranks of experienced practitioners has served this country pretty well for 700 years, but there are those who say that in today’s multi-cultural, pluralistic society the traditional system is not very well equipped to ensure that the bench contains men and women who really understand the social and political context of the laws which it is their task to interpret. At the same time, there are those who wish to put the clock back and get back to more traditional disciplines of school, religious and family life and ignore the insistent demands of modern pluralism. And the judges are in the middle of all this.
And, finally, the whole debate swirls around the pivotal role of the Lord Chancellor. The present Lord Chancellor believes very strongly that since he is personally accountable to parliament for the appointment of judges who cannot be removed once they are appointed, decisions on appointments must be taken by him and him alone. All the pressures I have mentioned are building up into a demand for new machinery in which responsibility would be shared with (or, more controversially, delegated to) a Commission with a general remit for every aspect of judicial recruitment, training and performance: there are, of course, plenty of overseas models on which we could draw. Recent months have seen changes — competitive advertisements for all judicial posts below the High Court bench, a lay element in all recruitment interviews, and a slight enlargement in the budgetary autonomy of the Judicial Studies Board — but there is every indication that we may see more radical changes over the next ten years.
It follows that despite the 800 years of history through which I have galloped, the English judicial scene is very far from being stuck in the past. There are all the indications that we will be living through some very interesting times in the last ten years of my judicial career. This very fact makes it all the more important to understand the historical origins of the principles of judicial independence that are all too often taken for granted today, and which any modern democratic state would ignore at its peril.
[1] George Sayles, Medieval Judges as Legal Consultants (1940) 56 LQR 247 at 251, citing Sayles, Select Cases in the Court of King’s Bench under Edward I, p lxxiii.
[2] Sayles, ibid p 247.
[3] ibid p 252, citing Statutes of the Realm, i p 305; Col Close Rolls 1346-1349 at 64
[4] See Theodore Plunkett, A Concise History of the Common Law, 5th edition, 1956, p 158.
[5] “Ipse autem rex, non debet esse sub homine sed sub Deo et sub lege” Bracton f 5 b, discussed in WS Holdsworth, “The Constitutional Position of the Judges” (1932) 48 LQR 28.
[6] Fuller’s Case (1607) 77 ER 1322.
[7] Prohibitions De Roy Mich 5 Jacobi 1; (1608) 77 ER 1342
[8] Case of the Proclamations 12 Co Rep 74; (1610) 77 ER 1352.
[9] Peacham’s Case Cro Car 125; (1613) 79 ER 711.
[10] Moore 827 quoted by Sir William Holdsworth, A History of English Law, 3rd edition, 1966 reprint, Volume 5, p 441.
[11] Lord Chief Justice Scroggs’ speech to the Lord Chancellor, London 1678. A summary appears in Col SP Don, 1678 pp 197-198. Cited by Andrew F Havighurst, “The Judiciary and Politics in the Reign of Charles II, Part II” (1950) 66 LQR 229 at p 231.
[12] Havighurst op cit p 246. In footnote 3 he says — “On Jeffreys’ merits as a lawyer, the remarks of John Evelyn and of Sir John Reresby are conclusive.” Henry B Wheatley, (ed), Diary of John Evelyn, 1906, October 4 1683 and October 31 1685; Reresby’s Memoirs, July 8 [1684].
[13] Godden v Hales 2 Show KB 475; (1686) 89 ER 1050.
[14] Collect Jurid ii, 407, cited by Sir William Holdsworth, A History of English Law, Volume 6, 1966 reprint, Methuen and Co Ltd, p 509.
[15] Quoted in JP Kenyon, The Stuart Constitution, 1996, Cambridge University Press, p 445 and John Miller, The Glorious Revolution, 8th impression, Longman, pp 101-102.
[16] [1975] QB 118.
[17] The Marshalsea Case 10 Co Rep 68b; (1613) 77 ER 1027.
[18] Hamond v Howall 2 Mod 218; (1674) 86 ER 1035.
[19] 2 Mod 218 at 221; (1674) 86 ER 1035 at 1037.
[20] Sir William Blackstone, Commentaries on the Law of England, Vol 1, 1978, Garland Publishing Inc, London. Being a reprint of the 1783 edition printed for W Strahan, T Cadd and D Prince, Oxford.
[21] Ann Reg 1806, pp 27-33 quoted by JH Baker, An Introduction to English Legal History, 3rd edition, Butterworths, 1990, p 193.
[22] RB Stevens, The Independence of the Judiciary: The View From the Law Chancellor’s Office, 1993, Oxford University Press, p 3.
[23] ie malpractice.
[24] House of Commons Debates, Vol 935, Col 1381, 19 July 1977, quoted in Colin Turpin, British Government and the Constitution: Text Cases and Materials, 3rd edition, Butterworths, 1995, p 64.
[25] Prebble v Television New Zealand Ltd [1995] 1 AC 321 at 328.
[26] Garnett v Ferrand 6 B&C 610 at 624; (1829) 108 ER 576 at 581.
[27] Sirros v Moore [1975] QB 118 at 132.
[28] Re McC (A minor) [1985] AC 528.
[29] Ibid at 541.
[30] David Pannick, Judges, 1987, Oxford University Press, p 99.
[31] R v Secretary of State for the Home Department; ex p Fire Brigade Union [1995] 2 AC 513 per Lord Keith of Kinkel at 544 and 546, and per Lord Mustill at 567-568.
[32] R v Ministry of Defence ex p Smith [1996] QB 517.
Henry Brooke 