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Security of Tenure

It is appropriate, if not entirely accurate, to say that England has independence of the judiciary in the sense of the independence of each individual judge. Taking what are conventionally seen as the hallmarks of such independence—security of tenure, fiscal independence, impartiality, and freedom from executive pressure—there is little doubt that England qualifies under any reasonable standard with respect to individual judges. One has to look at the English scene historically and sociologically, however, to comprehend fully the extent of judicial independence experienced by individual judges.

Traditionally, we look to the Act of Settlement as the basis of judicial independence. The protection provided by the Act—that judges were not to be dismissed without addresses to both Houses of Parliament—must be seen, however, in the context of eighteenth-century society—a period of rationality and “right order.”[11] Judges were still best understood as part of the medieval King’s Council. Many officers of State had lifetime appointments, including bishops and those whom we would now call civil servants. Like the parson and the squire, the judge was thought to hold the freehold of his office. The problem was that James II had attempted to replace judges and intimidate bishops. Because good governance would not tolerate such behavior, a modified form of impeachment was introduced to protect judges.

Certainly the tenure of English judges since then has been relatively peaceful. The closest a judge has come to being dismissed after addresses by both Houses was Justice Barrington, an Irish judge, for alleged bribery. Justice Grantham,[12] one of the undistinguished political appointments to the High Court Bench by Lord Halsbury, the Conservative Lord Chancellor at the turn of the century, was nearly dismissed after a particularly partisan decision in the Yarmouth By-Election case in the first decade of this century. The most noted recent near example was that of Sir John Donaldson, a High Court Judge sitting as President of the Industrial Relations Court. In December 1973, 187 Labour MPs called for his removal for “political prejudice and partiality.”[13] The move failed and, as we shall see, Donaldson ended as Master of The Rolls (President of the Court of Appeal).[14] In the end, Barrington, Grantham and Donaldson all survived.

One ought also to insert a few further caveats in the litany of assumed praise for judicial protection and integrity. Politics become a factor. For example, Lord Trevethin (Lawrence L.J.), appointed Lord Chief Justice in 1921 to keep the seat warm for Sir Gordon Hewart, was required to sign an undated letter of resignation by that devious Prime Minister, Lloyd George. When the Coalition Government broke up in 1922, Trevethin read of his resignation in The Times.[15] Justice was done, however. Hewart was not an admired Chief Justice, and ultimately he too was dismissed by a telephone call from 10 Downing Street in 1940 when Churchill, in the darkest days of the Second World War, needed to find a berth for Caldecote, his less than effective Dominions Secretary.[16] In 1928, the first Lord Hailsham asked for Lord Atkinson’s resignation as a Law Lord because the Canadian press said there were too many “old fogies” in the Privy Council and, as Atkinson reported, “I was the oldest of the old fogies.”[17] Certainly the introduction of a mandatory retirement age in 1959 helped, but the second Lord Hailsham, Lord Chancellor for Edward Heath and Margaret Thatcher, had to urge Lord Chief Justice Widgery[18] and Lord Denning[19] on their way. Judges also police their own. Early in 1998, Justice Harman of the Chancery Division, much criticized by the legal press for arrogance, felt obliged to resign after particularly damning condemnation of his casualness and tardiness by the Court of Appeal.

One must remember that the vast bulk of the full-time judiciary in England (now some 1300) have no protection under the Act of Settlement, although in fairness to the Lord Chancellor’s Department, dismissals are handled with considerable natural justice.[20] When thinking about security of tenure, we also must remember that the English increasingly use a probationary period before substantive appointment. The Recorder and Assistant Recorder, both part-time appointments, are used as a training grade. Appreciably more obvious is the old system of commissioners and the more recent system of Deputy High Court judges.[21] These are patently probation systems—preparatory to appointment to the High Court—and the purist would argue inconsistent with the Montreal Declaration on the Independence of the Judiciary.[22] It is interesting to note, however, that the House of Commons Home Affairs Committee in its recent report on judicial appointments does not think a five-year probationary period unreasonable and is willing to consider term appointments on the bench.[23]