Accountability e Transparência da Justiça Civil - Ed. 2019

Accountability e Transparência da Justiça Civil - Ed. 2019

Accountability e Transparência da Justiça Civil - Ed. 2019

Accountability e Transparência da Justiça Civil - Ed. 2019

Accountability And Transparency In The Course Of Civil Justice In England And Wales - Parte II. Perspectivas Nacionais

Accountability And Transparency In The Course Of Civil Justice In England And Wales - Parte II. Perspectivas Nacionais

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John Sorabji


This paper examines the English and Welsh (hereafter England and English) civil justice system. It does so in order to answer a series of questions concerning accountability and transparency of proceedings in the English civil justice system. I note that an interesting comparative study of transparency, and publicity of proceedings including the use of ICT, is set out in the Supreme Court of India’s decision in Tripathi v Supreme Court of India (No. 1232 of 2017). The judgment contains a detailed consideration of the principle of open justice and modern means to implement it in the United Kingdom’s legal jurisdictions and other common law jurisdictions. 1

1. Institutional Independence of the Judiciary

The initial issue I am asked to consider is the institutional independence of the judiciary; its ‘external independency’.

It is an longstanding feature of the United Kingdom’s uncodified (not unwritten) constitution that the judiciary, as the third branch of the state, are institutionally independent from the executive and Parliament. 2 That only the courts and judiciary could exercise judicial functions was established during the formative period of the common law. First, it was established during the medieval period that the judicial power of the state could only be exercised by the judiciary; see Chedder v Savage (1406). Secondly, the 17th century saw the establishment of the principle that the executive, in this case the King, could not act as a judge in court. Only members of the judiciary were able to exercise the judicial power of the state: see Coke CJ in the Prohibitions del Roi,

‘... the King in his own person cannot adjudge any case, either criminal, as treason, felony, etc., or betwixt party and party, concerning his inheritance, chattels, or goods etc., but this ought to be determined and adjudged in some Court of Justice, according to the law and custom of England ...’ 3 .

Such institutional separation of powers was not only achieved at this time due to the prohibition on the sovereign, or executive, from exercising the judicial power of the state it was also established through the separation of the superior common law courts from the King’s Council or Curia Regis. 4 This separation was accomplished during the formative period of English constitutional evolution. It underpinned the statutory reform of the superior courts in the 19th century, which saw the common law and equity courts consolidated into the High Court. 5 Full separation was not finally achieved however until 2005, when the House of Lords’ judicial functions and power as the final appellate court for the United Kingdom was transferred to the United Kingdom Supreme Court, its successor-in-title. 6 The current approach is one that understands the need for the three branches of the State to respect each other the other branch’s proper sphere of responsibility, 7 and to provide appropriate support for each other; as Lord Thomas CJ described it in 2017, it calls for independence and inter-dependence. 8

Thirdly, institutional independence was achieved through ensuring that individuals could not hold judicial and political office simultaneously i.e., by ensuring that the two roles could not be blended. This was achieved in a number of ways. While senior judges held significant political offices in the executive until the early part of the 18th century (Lord Mansfield CJ and Lord Ellenborough CJ both were members of the government 9 ) and held office as Members of Parliament, including Speaker of the House of Commons, 10 both in constitutional practice and in law that was no longer possible post-1870. 11 While judges who were also members of the House of Lords had only, generally, spoken and voted on legislative matters concerning the administration of justice during debates in the House, constitutional convention adopted as a self-denying ordinance by the judiciary towards the end of the 20th century brought that to an end; the possibility the convention could be circumvented was removed in 2005 when all senior judges were prohibited from exercising a right to speak and vote in the House of Lords whilst they held judicial office. 12

It is one thing, however, to establish the courts and judiciary as an independent branch of the state. It is another to render them independent of external influence, whether that is from the executive, legislature, or other third parties. In order to inoculate the courts and judiciary from external influences, to secure their institutional independence, the following measures are in place. First, judicial independence is, and is understood to be, an aspect of the constitutional principle of the rule of law. While this has formed part of the UK’s uncodified constitution since the 17th century, in 2005 it was acknowledged to be the case by Parliament in the Constitutional Reform Act 2005. This Act reformed the relationship between the executive and the judiciary, and did so in order – amongst other things – to better secure institutional separation of powers in the UK. To achieve this it primarily removed the Lord Chancellor, who was both a government minister, Speaker of the Upper House of Parliament (the House of Lords), and a judge and head of the judiciary, from having such a tri-partite role. In terms of the judiciary, the Lord Chancellor ceased to be a judge and ceased to be head of the judiciary. The Act transferred the role, and responsibilities, of head of the judiciary to the Lord Chief Justice of England and Wales. 13 In addition to this the Act also introduced three measures, which underpin institutional and individual independence of the judiciary:

•it acknowledges the existence of the constitutional principle of the rule of law, and maintains the Lord Chancellor’s duty to uphold it; 14

•it imposes a statutory duty on the Lord Chancellor and all government Ministers who have a responsibility for the judiciary or the administration to ‘uphold the continued independence of the judiciary’ 15 . In particular, a statutory duty is imposed on the …

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Ilustração de computador e livro
4 de Julho de 2022
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