Above it all

Stephen Sedley

  • Suing Judges: A Study of Judicial Immunity by Abimbola Olowofoyeku
    Oxford, 234 pp, £27.50, December 1993, ISBN 0 19 825793 7
  • The Independence of the Judiciary: The View from the Lord Chancellor’s Office by Robert Stevens
    Oxford, 221 pp, £25.00, November 1993, ISBN 0 19 825815 1

For some reason the Mansion House was not struck by a thunderbolt on the night in 1936 when the Chief Justice, Lord Hewart, told the guests at the Lord Mayor’s Dinner: ‘His Majesty’s Judges are satisfied with the almost universal admiration in which they are held.’ Or, for that matter, on the same occasion in 1953 when the Lord Mayor told the diners: ‘Her Majesty’s judges have a greater understanding of human nature than any other body of men in the world.’ But who is to judge the judges? Well, there’s the Court of Appeal, and beyond it the judicial committee of the House of Lords, both of them capable of rapping judicial knuckles and occasionally drawing blood; but they’re just more judges. More fearsomely, there’s public opinion, stoked by a less than obsequious press – although the press can wound more easily than it can strike. And what if a judge’s indolence or spleen has cost someone their liberty or their job or their home? If the author of the disaster had been anybody else the victim might have expected to be able to sue for compensation: but nobody can sue a judge, however incompetent or even malicious, for anything which he or she has done as a judge. A doctor, an architect, a solicitor – certainly; a barrister – well, sometimes; a magistrate, rarely; a judge, never. In fact (though Abimbola Olowofoyeku has uncharacteristically missed this case) in 1746 the Chief Justice of the Common Pleas gave judgment for £1000 damages in favour of a Lieutenant Frye against the president of a court martial which had wronged him, and then encouraged Frye to sue the other members. When they protested through the Lords of the Admiralty to the King, the Chief Justice had the whole lot of them arrested for contempt and released them, when they apologised, with the warning: ‘Whosoever set themselves up in opposition to the law or think themselves above the law will find themselves mistaken.’

Why should judges not be accountable like others if they do unjustifiable harm to people who have come or been brought before them for justice? Abimbola Olowofoyeku’s intelligent study examines the answers given by the legal systems of Britain, Canada, Nigeria, New Zealand and the United States, with glances at other West European countries, and finds most of them long on rhetoric and short on logic. Of course there are, as he says, good reasons for not allowing every disappointed litigant to have a go at the judge; but there are few good reasons for shielding from ordinary civil liability a judge who has deliberately or recklessly abused his or her office and done compensable harm to an individual. Yet since the early 17th century judges of the higher courts have enjoyed complete civil immunity for unlawful acts done in office, regardless of jurisdiction, motive or circumstance, and judges of the lower courts nowadays benefit from the same protection. The immunity, it is true, applies only to acts done in office; but in office, as King Lear observed, a dog’s obeyed. The very oath of office requires the judge to do justice without fear or favour, affection or ill-will (it used to be ‘to do justice indifferently to all men’, but it was realised that this could be misunderstood): why then should the only redress for breach of the oath be the ultimate sanction of dismissal?

The case for immunity from civil proceedings is not predicated on the notion that judges are above the law. They are undoubtedly open to prosecution for criminal corruption in office. No such case exists in the annals of British law, but those of the United States are rich in cases of judges who have joined their customers in jail. (True, Francis Bacon in 1621 had to resign the Lord Chancellorship for taking bribes, but he explained engagingly that this had not meant that he necessarily gave judgment in favour of the donors. And Lord Chancellor Macclesfield was impeached and fined in 1725 for selling offices – no crime in itself – that were purchased with suitors’ money.) The ground for civil immunity is that such lawsuits would compromise judicial independence, a predicate which attracts understandable suspicion because it comes from the judges themselves. For example:

It is a principle of our law that no action will lie against a judge of one of the superior courts for a judicial act, though it be alleged to have been done maliciously and corruptly ... The public are deeply interested in this rule, which indeed exists for their benefit and was established in order to secure the independence of the judges.

This was a judge speaking in 1863. Fifty years earlier another judge had said:

There is something so monstrous in the contrary doctrine that it would poison the very source of justice and introduce a system of servility, utterly inconsistent with the constitutional independence of the judges – an independence which it has been the work of ages to establish – and would be utterly inconsistent with the preservation of the rights and liberties of the subject.

With such advocates, who needs critics? Wrapped up in the rhetoric there is some sound policy, but in propounding it such judges have propounded too much. The constitutional independence of the judiciary is one thing, and an important thing; but if there are occasional cases where anger or prejudice or gross neglect distorts judgment, then in those cases the rights and liberties of the subject are equally important. It is only by permitting such allegations to be tried, the argument goes, that it can be known whether there are cases of this kind and, if there are, what redress can be offered.

It is not, of course, the judiciary alone which wants judges to be independent. Any sane society does. The question is: independent of what and of whom? Of the executive, certainly; of the parties to the dispute; of external pressures which may distort judgment; of personal biases: and no doubt of more besides. The Universal Declaration on the Independence of Justice adopted in Montreal in 1983 asserts: ‘Judges individually shall be free, and it shall be their duty, to decide matters before them impartially, in accordance with their assessment of the facts and their understanding of the law without any restrictions, influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason.’ And: ‘Judges shall enjoy immunity from suit or harassment for acts and omissions in their official capacity.’ Although no doubt the first question for cynics is how many non-lawyers were at the conference which adopted this text, the first passage is of real importance in a world in which many interests, from governments to gangsters, want to and sometimes do influence and intimidate judges. A developed society in which there is no assured recourse to trustworthy courts of law is not civilised. But does the second passage follow from the first?

One simple reason why it need not is that while judges do not exceed or abuse their authority simply by getting decisions wrong, they have no authority to act maliciously or corruptly. It would be rational to hold that such acts take them outside their jurisdiction and so do not attract judicial immunity. After all, magistrates who genuinely but erroneously believe that they are acting within their jurisdiction forfeit their immunity; and the courts have in modern times stripped from ministers their claim that wrongs which they commit in office are beyond the reach of the courts. But the courts have turned their face against the application of this logic to themselves, holding that a ubiquitous threat of lawsuits would be more inimical to free and fair adjudication than the one case in a million where judicial wrongdoing might go unredressed. This is not quite as self-interested as it sounds. The threat of litigation which hangs over every American operating theatre and consulting room, and increasingly over every British one too, has a palpable effect on the way medicine is practised. Undoubtedly the fear of litigation can distort judgment, and nobody will benefit if defensive medicine, defensive social work, defensive public administration are joined by defensive adjudication in the courts, with victory going to the patty most likely to sue if it loses.

But is this the only alternative? Olowofoyeku argues not. He points first to the fact that the courts have not extended to other professions the tenderness which they have shown towards themselves – with the significant exception (which he doesn’t exploit) of the profession from which all judges until recently reached the bench, the Bar. For centuries it was impossible to bring a lawsuit against a negligent or incompetent barrister; and only in very recent years have the courts allowed it in relation to out-of-court advisory and drafting work. The objection was the same as the objection to suing judges: it would enable the loser to undermine the authority of a judgment by obtaining another court’s decision that it was as a result of the incompetence of counsel or the malice of the judge that judgment had gone against him or her. This is a real problem, because collateral attacks of this kind can destabilise a legal system. Olowofoyeku offers a cogent alternative, however: to permit such challenges only where, first, the adverse judgment has been quashed by the legal system itself; secondly, where exact chapter and verse can be given for the allegations of judicial misconduct; but never where what is complained of is defamation. The last point is important. In court, it is not only the judge who enjoys absolute privilege from a defamation action for anything he or she says; so do all witnesses and litigants, so that they cannot fairly complain if at the end of the verbal free-for-all they get hammered by the judge. Indeed it’s increasingly impossible for judges to complain if they in turn get hammered by the press. A good twenty years ago the then Lord Chief Justice told a committee looking at the law of contempt of court that modern judges had to have broad backs; and I doubt whether prosecutions in Scotland for murmuring judges, or in England for the equally oddly named offence of scandalising the court, make much of an appearance in the annual statistics.

And who will then judge the judge? Once the door is opened, an endless vista appears: if the second judge finds in favour of the first, it’s bound to be because of bias; and so ad infinitum. Olowofoyeku proposes either a special court with a majority of lay members, or a judicial ombudsman. Neither institution is unthinkable. If there is little work for it, all to the good. But would its very existence, the very possibility of challenge to judicial competence which it would bring, compromise the independence of the judiciary? Longstanding legal doctrine says yes: but if there is a topic on which it is Parliament and not the judges who ought to lay down the law, surely this is it.

Whatever the conventional wisdom of the well-off and the conventional self-congratulation of the legal establishment have taken for granted, large sections of society have never believed the judiciary to be independent of very much that matters. Four years before Lord Hewart made his arrogant remark a Conservative solicitor, C.L. Hodgkinson, anonymously published a highly critical book, English Justice, in which he remarked on ‘the unnecessary halo which has hitherto rested on every judicial brow’. ‘Whenever I have been among men or women who know the facts behind our fair-seeming judicial machinery,’ he said, ‘any story I have told has been capped by others far worse ... Discontent with the administration of justice in this country is growing among the working classes to an extent that may be dangerous.’

The sceptical but not entirely baseless view has been that the British judge, like the honest British journalist, does not need to be bribed or twisted because he (and sometimes nowadays she) has been programmed by upbringing and culture to see things in a particular and narrow way. This is not the same thing as the repeated complaint that judges are out of touch. Undeniably they are, if by this is meant that they know nothing at first hand about life on the dole, on the road, in the nick or on the make. Nor, however, do those to whose lips or keyboards the phrase repeatedly springs. A judge no doubt knows as little about a journalist’s or a plumber’s life as a plumber or a journalist knows about a judge’s life, or for that matter as the journalist and the plumber know about each other’s lives. We are all out of touch, miserably and ignorantly, with the lives of the great majority of our fellow human beings. What matter in this situation are the will and the capacity to listen and learn, and judges do get opportunities to learn at second hand about a great many things. As a barrister, it was not the judges who knew little or nothing about the topics before them whom I found worrying, for these generally approached the evidence with a willingness to learn and a desire to understand. The real problem was the judge who knew it all before he started, who was so in touch with real life that nobody could tell him anything, like the one I recall announcing as a well-known fact that all a working man would ever do with a large award of damages was buy a pub. Robert Stevens in a footnote cites a nice antidote from a law lord in 1833: ‘Here is a contract made by a fishmonger and a carrier of fish who know their business, and whether it is just and reasonable is to be settled by me who am neither fishmonger nor carrier, nor with any knowledge of their business.’ The trouble was that the carrier had a monopoly of rail transport and if the judge did not protect the fishmonger nobody would. Perhaps he should have listened and learnt. Incidentally, if out of touch is what you’re interested in, Oxford’s dust-jackets on these two books about judges are a good place to start. The first carries a photograph of a young man who appears to have found a circuit judge’s robes and half-glasses in the dressing-up box and put them on wrong. The second carries a photograph of four Queen’s Counsel. Still, as long as it’s men in wigs ...

The real problem is the one to which John Griffith and others have repeatedly called attention: that the judiciary comes very largely from a tranche of society whose values, culture, données and attitudes are homogeneous because they are socially and educationally inbred. Less attention has perhaps been devoted to the potent acclimatising process by which those who come to the Bar and finally the bench from less promising social and educational backgrounds than the public-school-Oxbridge phalanx become participants in the profession’s culture. It is this, and the resultant intellectual and emotional prism through which everyone – but everyone – inspects the data before them and draws conclusions, which is a reasonable focus of concern. We are perhaps closer than we were to appreciating that the practice of law does not necessarily equip a person to distinguish fact from fiction, and that the profession’s received ways of distinguishing between the two are profoundly culture-based and culture-biased, learnt in practice and carried forward into adjudication. This is why juries are such an important element in the system: by their existence they demystify fact-finding; they prove that 12 people from anywhere, in a well-structured environment, can carry out a critical judicial function.

Independence, in other words, need not mean either unaccountability or isolation. While the possibility of holding judges civilly liable in limited circumstances for harm done by a serious abuse of their power is intellectually attractive as a means of making inroads into these less defensible versions of judicial independence, such a step is not likely by itself seriously to compromise it. What an increasing range of opinion, wider than the judiciary itself, does consider to be a growing threat to judicial independence is central government, in particular – though not only – the Lord Chancellor’s Department with the Treasury at its back. Robert Stevens, a legal academic distinguished on both sides of the Atlantic, has been trawling through those papers of the Lord Chancellor’s Office which have become accessible under the Thirty-Year Rule. A lot of what he recounts promises at first to be riveting gossip for the profession but arcane trivia to outsiders. There is, however, nothing arcane in the account of Lord Chancellor Jowitt writing to the then Lord Justice Denning in 1949 about the publication of what became a classic, Denning’s Freedom under the Law: ‘I always hold my thumbs, as the children say, when I hear that a judge has written a book and I am old-fashioned enough to think that the less they write the better.’ ‘It is little wonder,’ Stevens comments, ‘the English judges have added little to jurisprudential debates.’

In 1954 Mr Justice Lloyd-Jacob wrote to the Times about the importance of confining atomic energy to peaceful uses. Lord Hail-sham, then in practice as a QC, wrote angrily to Lord Chancellor Simonds, who in turn wrote to the judge: ‘In my opinion it was a breach of your duty as a judge to write the letter, and I am deeply sorry that you wrote it.’ ‘I wrote it,’ Lloyd-Jacob replied,

as a Christian to my fellow Christians, with no thought of politics or controversy ... I greatly regret that I so grievously misapprehended the scope of current political controversy. I did not suppose that any fellow countryman of mine of standing and knowledge would advocate treating atomic warfare as less reprehensible than gas or bacteriological warfare.

Such a recantation may rank with Galileo’s. Then there are glimpses of the grotesques: Mr Justice Charles, for example, obituarised by the Times as ‘the embodiment of genial good sense and straight dealing’, whom his fellow judge Mr Justice Birkett described in his diary as ‘a domineering, vulgar, unjust and decrepit old man, who is a blot on the administration of justice’. Stevens mentions another such, Mr Justice Hallett, who he says was sent for and asked to resign for ‘asking too many questions’. A quiet exit was finally arranged. I was once told by a very old lady what the source of the problem was. ‘We used to be taken to the Halletts’ when we were children,’ she said. ‘My sisters and I would be put in the nursery to play with Hugh, and he would line us all up at one end of the room and lecture, us. I could have told the Lord Chancellor he was making a mistake appointing Hugh Hallett.’

None of this, had it become public, would have done much to enhance the almost universal admiration in which the judges apparently thought they were held. But Stevens’s overt theme is not the office politics or the sometimes embarrassing quarrels and vendettas of the permanent secretaries, Lord Chancellors and senior judges. It is the lack of any principled or articulated constitutional underpinning of judicial independence. In this critique, or at least in Stevens’s formulations of it, there is a hint of transatlantic self-satisfaction. ‘Nothing underlines the atheoretical nature of the British Constitution more than the casualness with which it approaches the separation of powers,’ Stevens states at the outset, citing in support the Donoughmore Committee’s remark: ‘In the British Constitution there is no such thing as the absolute separation of legislative, executive and judicial powers; in practice it is inevitable they should overlap.’ This is hardly new, and not necessarily a criticism either. In the famous essay on the question in Issue XLVII of the Federalist the author, who was almost certainly James Madison, singles this out as a feature of the British Constitution on which the American former colonies went on to model theirs. And, as Professor Stevens must know, the American Constitution allocates state power in ways which do not by any means create clear separations between the three main limbs of the state. Not only has the Supreme Court for long acquiesced in the claim of the President, as chief executive, to a dispensing power over elements of congressional legislation of a kind that was outlawed by the English Bill of Rights in 1689, but the mode of appointment of judges to the highest Federal courts is about as political as such a process could be, short of putting the candidates on the hustings – as happens at local level. This is not to say that our secretive method of judicial appointment is anything to boast about; simply that I doubt whether the United States has very much to teach others in this regard.

Stevens’s historical introduction is nevertheless full of interest. He points out that although the Act of Settlement assured the judges’ security of tenure and in this sense their independence as early as 1700, they went on advising Parliament about Bills and procedures, and as Privy Councillors took part in executive and legislative as well as judicial functions, until the second quarter of the 19th century. Indeed, anyone who today sees the Law Lords adjourning an appeal hearing in order to attend a debate or to vote in the House will appreciate that the separation of powers is still less than absolute. The chief justices also, of course, held positions in which they could and did make a lot of money from the sale of freehold offices. Stevens remarks with truth that judicial independence was more of a social status than a legal position. But long before 1825, when they were professionalised by being removed from everything except the administration of justice and put on salaries of £5500 or more a year, the judges had been wealthy men. On George I’s accession the puisne – i.e. ordinary – judges had been put on £1500 a year, with large periodic increases until, by 1800, they were on £3000 a year ‘free and clear from all taxes and deductions whatever’, and by 1810 on £4000. The purpose of the Hanoverian introduction of automatic knighthoods for the judiciary was probably to elevate the status of the honour rather than of the bench, and was reportedly resented by the latter. The further pay rise of 1825 may not therefore have been the massive buying-out it is sometimes said to have been; but it does mark a cleansing of the constitutional stables. In 1832 the basic judicial salary was brought down to £5000 a year, and there it remained until 1954, when it was still a pretty good wage in spite of inflation, but was finally raised by £3000 in one go. By then, as the Lord Advocate had written to the Lord Chancellor, it was ‘most unsuitable for a High Court Judge to travel in a public conveyance’. This is why many of them now cycle to work.

Once again, it is difficult not to be distracted from Stevens’s serious discussion by the comical forms the constitutional argument has taken. As Attorney General, Sir Hartley Shawcross in 1949 wrote to the Lord Chancellor pressing for a judges’ car pool: ‘Often they cannot obtain, and I think really cannot afford, taxis and one quite frequently sees them standing in queues for buses outside the courts.’ The stony-hearted Lord Chancellor replied that the late Master of the Rolls ‘took a strong view that he could not accept a car from the pool to drive him between the Law Courts and Waterloo because it would be a present from the Executive, offered without Parliamentary authority’. What underlies all these fatuities is a single serious fact: somebody has to run a legal system, provide the facilities and the staff and pay the judges’ wages. The Americans have a model which conforms well to the notion of an independent judiciary: essentially it is that the judges run and are responsible for their own courts. They are, however, equally dependent on state and Federal funds for their budgets, and this perhaps dilutes Stevens’s critique of the failure of Britain to do something similar. He speaks of

the difference between the American and British view of the separation of powers. In the United States the emphasis is on drawing a clear distinction between the responsibilities of Legislature, Executive and Judiciary. In Britain, the issue is looked at from the other end of the telescope. Rather than looking at decision-making as a spectrum, an effort is made to categorise each decision as inherently judicial, executive or legislative in character.

Try as I may, I cannot see a distinction in this difference. Any separation of powers requires both things, the conceptual categories and the allocation of functions to them.

While I am resistant, on the evidence, to Stevens’s notion that the United States has got it right, both his theorisation of the problem and his historical account of it are full of insight. After the Judicature Acts and the Civil Service reforms of the 1870s it was thought that the English judiciary was to be self-administering like its American counterpart. Its head, the Lord Chancellor, was a judge with his own court (his courtroom is still there in the Royal Courts of Justice); and although he held office in the government of the day, he headed no ministerial department: his office was just that – the Lord Chancellor’s Office. But at the elbow of the 13 different Lord Chancellors who held office between 1885 and 1944 sat exactly two permanent secretaries: Muir Mackenzie from 1880 to 1915, and Claud Schuster from 1915 to 1944. It was they who increasingly ran the legal system, and in that time, Stevens argues, the judiciary slipped from second to third place in the hierarchy of separate powers. When one sees the hoo-ha in the files about judicial salaries and the stranglehold exerted over these by the executive, one sees why Stevens can put it this way. Schuster, for example, told the Parliamentary draftsman in 1933 how to draft his Bill to include the judges in the general cuts in government pay without treating them as civil servants: ‘Begin with a recital, which should be as long and pompous as possible, asserting the independence and all the rest of it ... Then declare that notwithstanding all this they are affected by the cut.’ In fact, the judiciary itself, during the Great War and in the years that followed, largely abdicated in favour of a Civil Service which, headed now by a mature Northcote-Trevelyan meritocracy from the same schools, universities and clubs as the judges themselves, could he trusted to run the country without the judges breathing down their necks. The result, during and after the long weekend between the wars, was a rolling devolution of power from both Parliament and the courts to the executive which did not begin to be reversed until in the Sixties the courts started to reassert their role as setters and guardians of legal standards of public administration.

Although he brings his argument up to the present, Stevens’s research ends with the Beeching reforms to the legal system of the early Seventies. This was the moment when the Lord Chancellor’s Office, symbolically as well as factually, became the Lord Chancellor’s Department. In the century or so that had passed, the Lord Chancellor had ceased to be one of the judiciary’s own, primus inter pares, and by imperceptible stages become a minister of the Crown at the head of a major department of state, who constitutionally was also the head of the judiciary and the Speaker of the House of Lords. It is in this incarnation that the Lord Chancellor today faces the judiciary across a divide chiefly of the Treasury’s making. In a public lecture in 1987 Sir Nicolas Browne-Wilkinson, then the Vice-Chancellor, now a law lord, pointed to the executive’s control of finance and administration as a growing threat to the collective independence of the judiciary. The distinction he drew between this real control from Whitehall and the symbolic fact that the judges are paid out of the Consolidated Fund rather than by executive decision was turned round by Lord Mackay when he too distinguished the inviolable source of judges’ salaries from the highly vulnerable costs of running the legal system: ‘I am answerable to Parliament for the stewardship of every penny of the very substantial remainder of my budget.’ Last year, following his retirement from the Court of Appeal, Sir Francis Purchas delivered a paper arguing that the conflicting demands on the Lord Chancellor as head of the judiciary and as a government minister called for a new constitutional order, placing the key functions of judicial administration under the Lord Chief Justice rather than the Lord Chancellor. But budgets still have to come from somewhere, and Lord Hailsham weighed into the debate with a reminder that the judges were not entitled to ‘run a sort of legal Arcadia’ in the name of judicial independence. The value of Stevens’s book is that it illustrates front within the bowels of the executive the kinds of tension which increasingly bedevil any state activity which costs money, and the way constitutional principles become tangled and overgrown by the processes of government. It also indirectly illustrates how easy it is, and how mistaken, to personalise institutions and to demonise persons. For anyone who wants to change things, that way impotence lies.

Stevens winds up with some questions: ‘How far beyond the independence of individual judges does England wish to go? ... How far is it prepared to provide support for a concept of the separation of powers, and within that a concept of judicial independence which would allow the English judges to be thought of as a co-ordinate branch of government?’ The concept of separate power exists, however: it does not have to be invented or rediscovered. It is not the concept but the reality of the judiciary as a co-ordinate branch of government which has grown spectacularly in modern jurisprudence and hence in modern constitutional law. For in Britain the constitution is as the constitution does. As Mr Podsnap said to the Foreign Gentleman: ‘We Englishmen are Very Proud of our Constitution, Sir. It Was Bestowed Upon Us By Providence. No Other Country is so Favoured as This Country.’ Professor Stevens might agree nevertheless that a country is Almost as Favoured as This Country if its Chief Justice can say, as Chief Justice Hughes of the United States did say: ‘The Constitution is whatever the judges say it is.’ By keeping the argument in a constitutional rather than a personal or institutional framework Stevens’s approach links up with Olowofoyeku’s. If it is the state itself which promises a fair trial, why should it not be the state that by law – not ex gratia – compensates those who do not get one? The independence constitution written in Whitehall for Trinidad (and gracelessly published as an appendix to an Order in Council) contains rights enforceable against the state itself. When a Trinidadian barrister was improperly gaoled for contempt by a judge, the Judicial Committee of the Privy Council in London held that he was entitled under the constitution to recover damages against the state rather than the judge. The United Kingdom’s courts are moving gradually towards a jurisprudence which recognises the state as a legal entity and constitutional actor in its own right, subject like the rest of us to the rule of law. It is by this kind of organic process that a new constitutional order may possibly develop, and with it the reassertion Stevens rightly seeks of the judiciary as a co-ordinate branch of government, possessing a sovereignty which Parliament too possesses but which the executive – that is, the government of the day – does not. Perhaps judicial independence, like all living constitutional values, is not so much given as generated.