One of the difficulties associated with developing a theory of judicial independence and accountability is that national practices and expectations vary so widely.
Last Thursday, the Italian government approved a draft package of measures to reform the Italian judicial system. Some – such as the proposal for a strict separation between judges and prosecutors – are arguably quite sensible. Not so positive, however, is the proposal that it should be possible to sue judges for violations of rights in the context of judicial decisions. According to The Guardian’s report, the proposals make judges and prosecutors subject to personal civil liability for acts committed in violation of rights in the same way as other state officials and employees’. The example given in the bill is of ‘unfair detention or other irregular limitation of personal liberty’.
The proposals have a long way to go before they can become law (and as they involve constitutional change, approval of both houses of the Italian parliament or a popular referendum will be required to ratify them). However, the real risk that this kind of regime would create a chilling effect limiting judges freedom of action – particularly when it comes to wealthy litigants or defendants with the capacity to sue at little personal risk to themselves – makes it a worrying one (although as the measure will be prospective if enacted, Silvio Berlusconi’s upcoming encounter with the judiciary will not be affected).
Back in Britain, Frances Gibb reports in The Times today that former Lord Chief Justice Lord Woolf, and three former Lord Chancellors, are fighting the Pensions Bill (currently going through the Lords) because of a threat to the independence of the judiciary (amongst other reasons). Part 4 of the Bill provides that the appropriate Minister may require judges to make contributions to the cost of their pensions (judges already contribute to the cost of benefits for their spouses and dependents).
At a time of austerity this issue is likely to be controversial. Other public servants facing redundancy and pay cuts may look wistfully at the terms and conditions of the judiciary and wonder why judges should not share at least some of the pain. And certainly the proposed measure does not threaten the independence of the judiciary to the same extent that the Italian proposal would. On the other hand we pay judges well, and protect them against reductions in salary, in order to preserve their independence and ensure the quality of those who serve on the bench. An effective pay-cut of 6% (Gibb’s figure) is significant by anyone’s standards. If, as Lord Woolf argued in the Lords, these measures will have a serious effect on judicial recruitment then the objections of those offering the perspective of the judiciary should not be dismissed out of hand.
The debate in the Lords continues.