Oct 05 2010
Last month, the Scottish judiciary launched an excellent new website (even the reliably-bilious Peter Cherbi described it as ‘quite good’!). It has a great deal of material which was previously inaccessible, ranging from all travel and subsistence expenses claimed by individual salaried judicial office holders1 to summaries of significant sentencing statements in the courts; even a Twitter feed, for the benefit of journalists rather than lawyers or the public. An enormous improvement on the tired and convoluted Scottish Courts Service website, the site shows care at every level. One small but politically-significant example is the domain, which as Iain Nisbet has explained is sensibly ‘org.uk’ rather than the governmental ‘gov.uk': something the UK Supreme Court couldn’t manage in spite of cogent judicial criticism2. Something I particularly liked is the use at many points of FAQs.
The matters I’d like to draw attention to here, however, are these: the publication of the new ‘Statement of Principles of Judicial Ethics for the Scottish Judiciary‘, formerly available only in samizdat form since April, and the implementation of an interim complaints procedure. These, of course, follow the Judiciary and Courts (Scotland) Act 2008, which came into force on 1 April 20103 and which provided for a new scheme of judicial discipline. It is predictable that the mere publication of a complaints procedure will substantially increase the number of complaints; an independent review suggested “the current level of around 180 complaints (many of which are inadmissible) might rise to 400 initially.” It is, I think, equally predictable that many will simply be from dissatisfied litigants; while complaints obviously can’t be made about judicial decisions, it is easy to cloak the complaint ‘the judge found against me although I know I’m in the right’ as a complaint of rudeness. Others, of course, will be genuine.
The Statement of Principles follows the usual model in the UK of being just that, rather than a detailed and prescriptive code; as the introduction states, ‘it is not intended to be prescriptive, like the contents of a statute; rather it is of the nature of guidance and should be seen as such‘. In some matters, indeed, it is less prescriptive than other UK Statements; for example, at 5.6, ‘A judge should not normally sit on a case in which a member of the judge’s family appears as advocate‘ is more flexible than the Northern Irish absolute rule ‘A judge should not sit on a case in which a member of the judge’s family (as defined in the Bangalore principles) appears as advocate.’ Compared to American statements, which are typically far more prescriptive, the Statement is very clearly not intended to provide a neat answer to every question. Take, for example, the question ‘Is it proper for a judge to belong to an organisation which discriminates on gender, racial, or similar grounds? Can a judge, for example, belong to a golf club which does not admit women?’This is not dealt with specifically in the Scottish statement at all; there is simply a general statement4 ‘The judge should not, by words or conduct, manifest any bias or prejudice towards any person or group on such grounds. The judge should carry out judicial duties without any differentiation on such grounds.‘ By implication, perhaps, the answer is that there is no bar; although in reality I would have thought that membership of discriminatory organisations is certainly questionable.
By contrast, the 2009 Code of Conduct for US Judges, which applies to the federal judiciary5, contains this lengthy statement, which provides a detailed and precise explanation to the effect that the answer to that question is a firm ‘no':
Membership of a judge in an organization that practices invidious discrimination gives rise to perceptions that the judge’s impartiality is impaired. Canon 2C refers to the current practices of the organization. Whether an organization practices invidious discrimination is often a complex question to which judges should be sensitive. The answer cannot be determined from a mere examination of an organization’s current membership rolls but rather depends on how the organization selects members and other relevant factors, such as that the organization is dedicated to the preservation of religious, ethnic or cultural values of legitimate common interest to its members, or that it is in fact and effect an intimate, purely private organization whose membership limitations could not be constitutionally prohibited. See New York State Club Ass’n. Inc. v. City of New York, 487 U.S. 1, 108 S. Ct. 2225, 101 L. Ed. 2d 1 (1988); Board of Directors of Rotary International v. Rotary Club of Duarte, 481 U.S. 537, 107 S. Ct. 1940, 95 L. Ed. 2d 474 (1987); Roberts v. United States Jaycees, 468 U.S. 609, 104 S. Ct. 3244, 82 L. Ed. 2d 462 (1984). Other relevant factors include the size and nature of the organization and the diversity of persons in the locale who might reasonably be considered potential members. Thus the mere absence of diverse membership does not by itself demonstrate a violation unless reasonable persons with knowledge of all the relevant circumstances would expect that the membership would be diverse in the absence of invidious discrimination. Absent such factors, an organization is generally said to discriminate invidiously if it arbitrarily excludes from membership on the basis of race, religion, sex, or national origin persons who would otherwise be admitted to membership.
Although Canon 2C relates only to membership in organizations that invidiously discriminate on the basis of race, sex, religion or national origin, a judge’s membership in an organization that engages in any invidiously discriminatory membership practices prohibited by applicable law violates Canons 2 and 2A and gives the appearance of impropriety. In addition, it would be a violation of Canons 2 and 2A for a judge to arrange a meeting at a club that the judge knows practices invidious discrimination on the basis of race, sex, religion, or national origin in its membership or other policies, or for the judge to use such a club regularly. Moreover, public manifestation by a judge of the judge’s knowing approval of invidious discrimination on any basis gives the appearance of impropriety under Canon 2 and diminishes public confidence in the integrity and impartiality of the judiciary, in violation of Canon 2A.
When a judge determines that an organization to which the judge belongs engages in invidious discrimination that would preclude membership under Canon 2C or under Canons 2 and 2A, the judge is permitted, in lieu of resigning, to make immediate and continuous efforts to have the organization discontinue its invidiously discriminatory practices. If the organization fails to discontinue its invidiously discriminatory practices as promptly as possible (and in all events within two years of the judge’s first learning of the practices), the judge should resign immediately from the organization.
Thus, it seems, pretty clear that an American judge could not be a member of Muirfield Golf Club, or the New Club.
- Not yet; apparently to be uploaded from November. [back]
- It would be interesting to compare the respective costs of the two sites; I’d suspect the Scottish site was designed at a fraction of the cost of the UK one, or even of its logo. [back]
- There are a number of resources on the Act, including the Scottish Parliament Justice Committee’s home page on the bill. There is a full and useful commentary in the Current Law Statutes of the Act by James Harrison and Chris Himsworth of Edinburgh University, and James Harrison’s article in the Edinburgh Law Review ‘Judging the Judges: the New Scheme of Judicial Conduct and Discipline in Scotland‘ is available online and is also valuable. [back]
- Paragraph 8.1. [back]
- There are parallel codes at state level. The American approach is clearly in the context of different problems and issues; we do not, for example, have judges in Scotland who accept money from private prisons as a fee for wrongfully convicting and imprisoning children; or who order court offices to be closed so as to prevent the lodging of an appeal against a death sentence; or who… , no, let’s leave Creek County, Oklahoma, out of this. Our perceived problems are more moderate; although a well-known member of the Faculty of Advocates and former Chief Justice remains, I believe, under house arrest for perjury, that didn’t happen here but in Tonga. [back]
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