The harshest critics of the justice system are doubtless underwhelmed by the contents of an overhaul that will make judges more accountable. They envisage more direct repercussions for errant members of the judiciary than the measures advanced by the Law Commission and broadly accepted by the Government. The likes, for example, of regular performance reviews. Such thinking, however, betrays a lack of understanding of the importance of judicial independence and the need to avoid anything that might compromise it. In that context, the Law Commission's proposals are a measured and sound approach to stemming criticism of the judiciary, the catalyst for last week's Herald Judging the Judges series.
It is vital in a democracy that judges, and the judiciary as a whole, are impartial and, as far as possible, independent of all external pressures. Only then can those who appear before them and the public be confident that cases are decided fairly on the evidence presented to the court and in accordance with the law. Crucially, this independence is not trammelled by the Law Commission's recommendations.
Its proposal to increase the accountability of the judiciary would, among other things, compel the Chief Justice to publish an annual report, and bring transparency to judicial appointments by setting out in law the process and the formal requirements needed to become a judge.
The commission could have gone further. It could, for example, have taken the responsibility for appointing judges out of the hands of the Attorney-General and given it to an independent appointments commission. That has been the situation in Britain since 2006. In practice, however, there may be little difference. If the Law Commission's view is accepted, appointments in this country will, by law, have to be made after consultation with appropriate people, including, most obviously, senior judges. Any change would, therefore, be as much a response to popular perception as reality.
Perception is at the heart of much of the criticism of the judiciary. Take the view that because judges, unlike those working in most jobs, are not subjected to annual performance reviews, they are unaccountable for bad rulings. This ignores the appeal and judicial review processes, and the questions that will be asked behind closed doors by the Chief Justice or a head of bench if appeals against a judge's decisions are frequently successful. There is also a Judicial Conduct Commission that handles complaints of improper behaviour by judges.
A strong riposte to those who want performance reviews is provided by the temporary criminal court judges who were part of the Scottish system until the turn of the century. They were appointed for 12 months, with renewal at the discretion of a government minister who was head of the prosecuting authority. The clear risk that the judges would improperly favour the prosecuting authority to enhance their chances of a permanent appointment eventually led to their demise. Performance reviews would, similarly, create the possibility of judges making decisions they believed would be acceptable to whoever dictated they should continue on the bench or be promoted.
But if much of the criticism of judges is flawed, it is certainly true that some are no longer applying all the aspects of the law available to them. When this results in tragedy, it invites a public backlash and knee-jerk legislation. At its best, this will merely eliminate some of the options open to judges, circumscribing their sentencing and pre-trial choices. At its worst, it may be utterly inappropriate. Either way, the response will be far more nuanced if there is a greater public understanding of the role of judges and their decisions. More openness can only aid that.