Although they play the role of “referee” during trials and hearings – especially in adversarial systems – at the heart of the judicial system sit magistrates, judges and coroners.
This part is focused on the people. The next part will focus on the court system itself.
A Welsh Justice System XII: A Welsh Court System
The final piece of this chunk of articles on the judiciary and independence focuses on the structure and make-up of...
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While it’s right that the judiciary maintains its independence from lawmakers and the government, they still have to be held to account to prevent becoming a law unto themselves.
As covered previously (A Welsh Constitution VII: Power & Accountability), the legislature would keep the judiciary in check by maintaining and making changes to rules and regulations regarding the administration of justice. They could also play a confirmation role in judicial appointments.
The executive branch/Welsh Government would keep the judiciary in check by setting up the judicial appointments process as well as setting the budget for the courts.
The media also plays a role in ensuring transparency and publication of judicial decisions, including questioning sentencing decisions or the actions of the criminal justice system.
To uphold the principle of judicial independence, judges would be expected to remain in office until they retire or reach mandatory retirement age – they can’t be removed from office (except in the most extreme circumstances, which I come back to) by the legislature or the executive alone.
Judges aren’t above the law. There will be instances where the conduct of judges needs to be investigated – whether that’s inappropriate behaviour, bringing the office into disrepute or even corruption.
If there’s any criminal behaviour, then someone in a judicial office would be treated the same as a member of the public. They would be investigated by the police, charged, then (if applicable) go to the appropriate court for a hearing. Anything that would disqualify an elected office member ought to disqualify a judge too – leading to immediate dismissal.
For serious non-criminal conduct issues – such as not acting professionally during a trial, consistently “stretching” sentencing guidelines or behaviour that contravenes the Nolan Principles of Public Life – then there would need to be a way to censure judges and other judicial officers.
The way this is done now is that the Judicial Complaints Investigation Office nominates a judge to investigate the person subject of the complaint4.
The easiest option would be for complaints about the conduct of the judiciary to be handled by an independent panel or tribunal appointed by the Law Council as and when needed (Part X). They would be able to recommend actions such as formal censure, additional training or suspension without pay.
As for removing judges from office, that could be the Senedd’s responsibility if the panel agrees it’s necessary and the Law Council makes such a recommendation to the Attorney General. The Senedd can then petition the head of state to remove a judge from office by a simple majority vote.
As said, the kind of offences that would lead to a judge being potentially removed from office would likely disqualify them automatically anyway (i.e. being imprisoned for a lengthy period).
It would only be relevant in circumstances that are too serious for a suspension, but not serious enough for disqualification (i.e. being caught using racist or sexist language about a defendant or court staff which suggests prejudiced decisions but can’t be proven).
4: Courts & Tribunals Judicary, (December 2021). Judicial conduct. Available at: https://www.judiciary.uk/about-the-judiciary/the-judiciary-the-government-and-the-constitution/jud-acc-ind/jud-conduct/
