Celebrating our judicial system

The conduct of judges has been in the news recently. First, three judges were removed from judicial office for viewing pornographic material on judicial IT equipment in their offices.

They were rebuked for the same activity by the Solicitors Regulation Authority. Then, more recently, the Court of Appeal strongly criticised High Court judge Mr Justice Peter Smith over a ‘disgraceful’ and ‘worrying’ letter he sent to Blackstone Chambers. He is under investigation by the Judicial Conduct Investigations Office (JCIO) for that and another matter.

If you want to be reassured of the health of our legal system, you need only visit the JCIO website and read its disciplinary statements. It is like coming across the notebook of a village bobby from a mythical rural England of the 1930s. The wrongdoing is so relatively harmless and the discipline so proper and correct.

At any rate, I was cheered by it after listening recently to lengthy descriptions of the Venezuelan judicial system. There, a judge, who is appointed on a provisional basis by the government – no such thing as experience or qualifications required – will ring up their superior in a higher court to find out what decision to make. The government instantly removes a judge who makes a decision against its interest, and in the worst case the judge will be jailed. There is no such thing as independence, let alone tenure and a career. When I was asked if judges were removed from office in the UK, and gave the example above of viewing pornographic material on a judicial computer, I felt I was conforming to a foreigner’s stereotype of what our country is like – gentle and eccentric. (It is, of course, a wonderful stereotype with which to be associated.)

The treatment of judges by governments is one of those acid tests of the state of democracy and the rule of law. Obviously, Venezuela is in a parlous state, getting worse by the day (the treatment of its judges is only one of many signs). But there is some deterioration in countries closer to home, if nowhere near the scale of what is happening in Venezuela. Poland is the most recent example. Its government, elected last year with a large majority, has been meddling (the polite word for it) in the make-up and decision-making powers of the Constitutional Tribunal. Only the Polish government and its supporting members appear to think that it is behaving properly. Everyone else has been shocked by the obvious attempt at political manipulation of the most important court in its democracy.

The Venice Commission (the short name for the European Commission for Democracy through Law, which is the Council of Europe’s advisory body on constitutional matters) has recently issued an opinion condemning the Polish government for undermining democracy, human rights and the rule of law. The European Commission is similarly outraged and has launched – for the first time – its new rule of law procedure, which was established only in 2014, to deal with questions about whether member states are upholding the EU’s democratic values.

Of course, the Polish government has reacted angrily in its turn. But it is encouraging that there are official mechanisms at European level, policing (to the limited extent allowed) the independence of the judiciary in Europe. On further investigation, it appears that there is a range of bodies doing this. Another, the Council of Europe’s Consultative Council of European Judges, whose vice-president last year was our very own Sir Richard Aikens, has recently published a report on Challenges for judicial independence and impartiality in the member states of the Council of Europe. A further example is the European Networks of Councils for the Judiciary (ENCJ), which approved earlier this month the ENCJ report on independence and accountability – improving the performance indicators and quality of justice. This body’s immediate past chair is Sir Geoffrey Vos, also from the Court of Appeal.

There are proper criticisms to be made of our judges, of course. The most frequent is that the judiciary’s composition lacks diversity in terms of gender, class and ethnic origin. This is true.

Then there are attacks from the rabid press when the judiciary stands in the way of their agenda. The refusal to allow the newspapers to publish the name of the celebrity in the threesome sex case was a recent example – foolish old dodderers, out of touch, making an ass of the law, that sort of thing. Mostly, I don’t agree with these criticisms. Finally, there are other attacks on a judge or judges after a single controversial decision concerning the community at large, as in the recent family law case. But these will happen anywhere from time to time.

Whatever your views, a quick comparative survey should lead us to celebrating the health of our judicial system. Anyone who disagrees should spend an afternoon reading first a report on the Venezuelan judiciary and then the disciplinary statements on our own JCIO website.

Jonathan Goldsmith is a consultant and former secretary-general at the Council of Bars and Law Societies of Europe, which represents around a million European lawyers through its member bars and law societies. He blogs weekly for the Gazette on European affairs