Not​ for the first time, Mr Justice Peter Smith, a judge of the Chancery Division of the High Court, got his personal life and his judicial work entangled. This time it concerned his luggage, which had gone missing on a BA flight from Florence. While the luggage was still missing, BA appeared in his court as a litigant and the judge demanded to know what had happened to it; he stood down only after an unseemly wrangle with BA’s counsel. The same judge in 2007 had tried a case involving a firm of solicitors with which his private negotiations to leave the bench had not long before broken down in rancour. On that occasion he refused to recuse himself and went on to display such hostility to the firm that the Court of Appeal set aside his judgment. A complaint to the newly set up Office of Judicial Complaints resulted in a public reprimand from the lord chancellor and the lord chief justice, who stated that a firm line had now been drawn under the issue and that the judge enjoyed his full confidence.

Whether Mr Justice Peter Smith continues to enjoy the full confidence of the present chief justice we do not know. What we do know is that there is very little beyond a reprimand that can be done. Judges of the higher courts have for three centuries been able to be dismissed from office only by parliamentary resolution. This is now laid down by the Senior Courts Act 1981, which provides that a judge of the higher courts ‘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’. The formula, which comes from the Act of Settlement 1701, was intended to prevent any recurrence of the Stuart practice of dismissing judges at will. The 1701 act provided that ‘judges’ commissions be made quamdiu se bene gesserint [during good conduct] … but upon the address of both Houses of Parliament it may be lawful to remove them’. (The Latin qualification was taken without acknowledgment from the ordinance by which the Long Parliament in 1648 had begun making judicial appointments.) It is generally accepted that the two limbs form a single condition – that a senior judge may be removed only for misconduct, and then only by Parliament. But is the procedure workable? And should the last word on judicial tenure be in the hands of politicians?

There is no prescribed procedure, and no self-evident format, for trying a judge at the bar of either House. The only judge ever to have been dismissed on parliamentary motion was an Admiralty judge, Sir Jonah Barrington, who in 1830 was found guilty of misappropriating litigants’ funds. The case against him, having been accepted by the Commons, was argued at the bar of the House of Lords by the attorney-general, a member of the government as well as its legal adviser. More than one attempt has been made since then to get Parliament to vote for the dismissal of a senior judge. In 1924 the MP George Lansbury put down (but eventually withdrew) a motion for the dismissal of Mr Justice McCardie, who had told a libel jury that General Dyer had acted rightly in firing on an unarmed crowd in Amritsar. More menacingly, over 180 Labour MPs signed a motion in 1973 for the dismissal of Sir John Donaldson. Donaldson, then a High Court judge and president of the National Industrial Relations Court, later master of the rolls, had sequestrated £100,000 held in the political fund of the Amalgamated Engineering Union as a penalty for contempt of court. The motion accused him of ‘political prejudice and partiality’. The lord chancellor, Lord Hailsham, publicly attacked the signatory MPs for abusing parliamentary privilege, provoking a motion of censure on Hailsham himself for violating the privileges of Parliament. The motion for dismissal fell for the least democratic of reasons: the whips refused to allocate parliamentary time to it.

Something like this could happen again; and the government of the day might this time support the motion. Far from guaranteeing the independence of the higher judiciary, the Act of Settlement in such a situation would be its undoing. It’s not inconceivable that the attorney-general (who in spite of repeated calls to end his dual status continues to be both the government’s legal adviser and a political minister) could again appear as counsel seeking to persuade the Lords to endorse a Commons motion for dismissal. So a spat over a judge’s missing luggage may be an opportunity to consider the wisdom of the process without passion. Are there more appropriate ways of dealing with allegations of misconduct in the higher judiciary?

Since the abolition of the lord chancellor’s role as head of the judiciary by the 2005 Constitutional Reform Act, there has been an Office for Judicial Complaints which investigates allegations against judges and can make recommendations for disciplinary action to the lord chief justice and the secretary of state. For judges of the lower courts, these can include dismissal. Allegations of professional misconduct on the part of judges of the senior courts also come within its remit, but in these cases dismissal is not an option. There seems no strong reason why a decision-making panel of appropriate status should not have power in serious cases to recommend dismissal (New Zealand has already legislated for this), and the chief justice be empowered to act on it. Correspondingly, there may be good reason (going beyond the New Zealand system, which still leaves the decision to Parliament) for taking the power of dismissal out of the hands of two political assemblies before the habit (inaugurated by Michael Howard as home secretary in the 1990s and energetically adopted by some of his Labour successors) of publicly attacking judges whose decisions upset the government moves towards a replication of the Donaldson episode – or, just as unacceptably, before a serious adverse finding by the Office for Judicial Complaints is ignored by a government or sidelined by a parliamentary majority which for political reasons favours the judge.

Kenya, whose judiciary had for years been plagued with allegations of corruption, grasped this nettle under its 2010 constitution by setting up a vetting board, including three non-national judges, to review the suitability for office of the entire judiciary. It found four of the nine judges of the court of appeal unfit to continue in office, not for corruption but for repeated unjudicial behaviour on the bench. But vetting, as opposed to adjudication on specific allegations of misconduct, has its own dangers. Where South Africa in 1994 took the difficult decision to leave all judges appointed by the apartheid regime in office as a lesser evil than a political purge, a number of states in eastern Europe have since 1989 politically cleansed their courts, some (for example, East Germany and the Czech Republic) by examining judges’ political pasts, others (Bosnia-Herzegovina) by making the entire judiciary apply for reappointment. In some states (Albania) the opportunity for incoming governments to repopulate the bench with their own supporters has proved irresistible. But individual judicial misconduct is another story.

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