The Executive Judicial Constraints Notes

Judicial Constraints on the Executive The politics of the judiciary Judicial independence Clearly necessary for the rule of law, based on the separation of powers. Enshrined in Constitution Act. Judges should apply the law, not change it, because they are not accountable to the public (and are shielded from the public - no elections, etc.) Baroness Hale: judges should incrementally push boundaries, but shifts in policy are for the legislature. Race Relations Board v Dockmans Labour Club Complainant had been denied service at a private club based on the colour of his skin. Legislation had banned racial discrimination 'in the public sector', club claimed it was private so not affected. Lord Denning MR - 1 million members, constituted a section Lord Reid, HL, overturned, a conservative understanding = private place. Legislature was irritated, 1976 Race Relations Act deemed any group with over 20 members to be 'public' Pro diversity When a court is socially and culturally homogenous, it is less likely to command public confidence in the impartiality of the institution. Unless minorities feel the legal system is their legal system, estrangement from the law will continue. Desirable for appellate courts, where judges' experiences and attitudes influence each other. Appellate courts should have a wide range of skills. Judicial club of ageing Pakeha men cant identify or understand demands of Maori, minorities, women or the poor. Pro-merits only Don't need to have Maori judges in NZ as Scottish judges are needed in HL, because we have no separate Maori legal system (just customs). Guidelines for appointment to High Court contain a commitment to active promotion of judicial diversity while not compromising the merit requirement. Judicial legitimacy depends upon judges being picked by merit. Models to further judicial diversity Trickle up: as the pool of candidates from which to select judges grows, judicial diversity too will grow. But devalues/denies the problem, assumes the same experience for minorities entering judicial pool (i.e. That they will remain practicing) Affirmative action: having a target/quota of judges of different ethnicities - aims for representativeness, not diversity. Would address imbalance immediately, speed up desirable progress Wouldn't be supported from inside legal profession. Tie-break model: select based on merit, but where the merits are equal judicial diversity shall determine the preferred candidate. Single judiciary: create a single judiciary with a single career path, allow temporary judges in lower courts to give potential judges experience. SCC: need a change in attitudes, not just chromosomes. Judicial training is one way of changing attitudes - or, if you are more cynical, teaching judges to hide their prejudices. Methods of appointing judges 1. On advice of executive (NZ) 2. Formal training programmes, competitive examination - (France) 3. Election - largely obsolete 4. Judicial appointments commission - (Israel) Our method is a matter of convention: 1. Generate a list of possible candidates - request expressions of interest, consult the profession. 2. The CJ and President of CA sift through candidates to make a 'long list', Solicitor General may do supplementary consultation 3. When a vacancy occurs, a 'short list' is generated, CJ and Solicitor General make further consultation. 4. Several names are put to the Attorney General, who decides to ask a preferred candidate, then takes matter to cabinet. 5. Advice to GG is provided by Attorney General - so accountable to Parliament and electorate for advice. Judicial Activism and Ethics For judicial creativity: People's desires of the law are inconsistent: certainty and predictability v just and contemporary, relevant. Arguments against judicial creativity based on legislature's democratic mandate may be misplaced; legislators often delegate power to unelected officials. Judges shouldn't defer issues of injustice to Parliament when they are so boring, technical, particular or divisive to be looked at. A final court must check the rules emerging from lower courts, make them conform with principles of law: not law as an end in itself, but as a means to a just and ordered society. Judges necessarily look at political considerations, but must be divorced from partisan politics. Judge's reports are publically available to scrutiny from media, politics, public - if not honest about reasons (policy), then policy not open to criticism. Procedure of choosing judges is becoming more open because of an acknowledgement that policy impacts judicial decision making. By overruling past, obsolete law, judges can give expression to contemporary thought in society. In fact there is a close union between the legislative and judicial functions of government. Common law = garden. The court through activism can play an important constitutional role as a break on executive/legislative tyranny. But when courts like the HL sit and consider not just ratio decidendi but also the effects of decisions (statistically, even), what has given them the competence to make these policy considerations that effect the public so profoundly? Bangalore Principles of Judicial Conduct - international Code on judicial: Independence. Public Page 16

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