This wide-ranging comparative account of the legal regimes for controlling administrative power in England, the USA and Australia argues that differences and similarities between control regimes may be partly explained by the constitutional structures of the systems of government in which they are embedded. It applies social-scientific and historical methods to the comparative study of law and legal systems in a novel and innovative way, and combines accounts of long-term and large-scale patterns of power distribution with detailed analysis of features of administrative law and the administrative justice systems of three jurisdictions. It also proposes a new method of analysing systems of government based on two different models of the distribution of public power (diffusion and concentration), a model which proves more illuminating than traditional separation-of-powers analysis.

Controlling Administrative Power: An Historical Comparison

The Least Dangerous Branch

This paper takes a sceptical look at the possibility of advanced computer technology replacing judges. Looking first at the example of alternative dispute resolution, where considerable progress has been made in developing tools to assist parties to come to agreement, attention then shifts to evaluating a number of other algorithmic instruments in a criminal justice context. The possibility of human judges being fully replaced within the courtroom strictu sensu is examined, and the various elements of the judicial role that need to be reproduced are considered. Drawing upon understandings of the legal process as an essentially socially determined activity, the paper sounds a note of caution about the capacity of algorithmic approaches to ever fully penetrate this socio-legal milieu and reproduce the activity of judging, properly understood. Finally, the possibilities and dangers of semi-automated justice are reviewed. The risks of seeing this approach as avoiding the recognised problems of fully automated decision-making are highlighted, and attention is directed towards the problems that remain when an algorithmic frame of reference is admitted into the human process of judging.

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Re-engineering justice? Robot judges, computerised courts and (semi) automated legal decision-making

Brexit has unveiled previously hidden aspects of UK society, law and politics. It provides a valuable opportunity to investigate the social reception of law, and in particular the mediation of the law and constitution in the press. The distinctive constitutional arrangements and histories of Wales, Scotland, Northern Ireland and England have given rise to different territorial interpretations of the UK state. These asymmetries have parallels in the UK’s territorial media landscape, yet we have little understanding of how this landscape contributes to constitutional discourses. This paper offers quantitative content and thematic analysis of UK-wide media coverage of major court judgments which have served as critical junctures in the Brexit process. The analysis reveals striking territorial variation in the volume and substance of coverage. Here, the media appears to reinforce divergent understandings of the constitution: while English reporting chimed with a more unitary account of the constitution, reporting elsewhere was more consistent with a vision of the UK as union-state. In light of these findings, we argue that media analysis can make a valuable contribution to our understanding of the law and the constitution.

/pdf/brexit-the-press-and-the-territorial-constitution-2ohpn85kzv.pdf

Brexit, the press and the territorial constitution

This thesis by publication analyses the emergence of independent judicial councils
and their role in facilitating judicial control of court administration in Australia,
Canada, Ireland, the Netherlands, Sweden, the UK, the USA and other countries.
While much research has been conducted into the relative merits of judicial control
of court administration, the thesis extends the court governance literature by
developing an analytical policy framework for a model Judicial Council of Victoria
with broad statutory responsibility for improving the quality of justice in the court
system. The thesis then applies the proposed analytical model to assess the legal
and institutional framework of Court Services Victoria (‘CSV’), which was
established in 2014 in order to transfer the responsibility for court administration
from the executive government to the judiciary. The thesis argues that an
independent judicial council, such as CSV, requires a strong developmental
mandate to assist the courts improve their operations and respond to a multitude of
internal and external challenges that they inherited from the executive system of
court administration. At the level of the courts, the framework envisages the
establishment of a compact management board, comprising executive judges and
the court CEO, which is modelled upon a corporate board of executive directors,
with full responsibility for court administration.

Transforming court governance in Victoria

Judicial independence is generally understood as requiring that judges must be insulated from political life. The central claim of this work is that far from standing apart from the political realm, judicial independence is a product of it. It is defined and protected through interactions between judges and politicians. In short, judicial independence is a political achievement. This is the main conclusion of a three-year research project on the major changes introduced by the Constitutional Reform Act 2005, and the consequences for judicial independence and accountability. The authors interviewed over 150 judges, politicians, civil servants and practitioners to understand the day-to-day processes of negotiation and interaction between politicians and judges. They conclude that the greatest threat to judicial independence in future may lie not from politicians actively seeking to undermine the courts, but rather from their increasing disengagement from the justice system and the judiciary.

https://radar.brookes.ac.uk/radar/file/f4be6034-85c0-4c85-83eb-0b52f9f6dc89/1/chapter 5 for RADAR.pdf

The Politics of Judicial Independence in the UK's Changing Constitution

Although Ireland is often cited as part of the vanguard of countries adopting forms of judicial self-governance in the 1990s, this appearance can be misleading: the Irish judiciary are self-governing only in limited respects. The judge-led Court Service is in charge of court estate, non-judicial personnel and provision of information on the court system to the public. Many key matters – discipline, promotions and deployment – remain largely out of the control of the corporate judiciary. Judicial appointments are significantly at the discretion of the government. In the last decade, there have been significant moves towards a more corporate judiciary and these are reflected in the creation of a judges’ representative body, the Association of Judges of Ireland, and a shadow Judges Council. There are currently proposals to create a new independent mechanism for appointing judges and to create a Judicial Council with a significant role in disciplining the judiciary. The Irish experience highlights the importance of political and cultural factors in establishing and maintaining judicial independence and self-governance. Despite the significant role for the government in judicial appointments, and the presence of a culture of political patronage in these appointments, there is nonetheless a robust culture of individual judicial independence once judges have been appointed. The creation of the Courts Service in 1999 was a significant transfer of administrative power to the judiciary but it was approved without demur by the political branches, who welcomed the depoliticization of controversial decisions about court estate. Conversely, reforms to judicial appointments have been weak because politicians saw value in maintaining a relatively harmless form of political patronage, and proposals for a Judicial Council that have agreed in outline for two decades have yet to be enacted, apparently because they lack sufficient political salience. The defence of judicial independence, and the creation of robust institutional mechanisms for defending it, ultimately requires the goodwill of politicians.

/pdf/never-let-a-crisis-go-to-waste-politics-personality-and-493gtwrs2p.pdf

Never let a Crisis go to Waste: Politics, Personality and Judicial Self-Government in Ireland

This article has three main objectives. First, we present an alternative form of constitutional
'dialogue' to that which is prevalent in the legal academic literature, and use dialogue in its ordinary
meaning of face to face conversation. Through a detailed study of dialogue between judges and
parliamentary committees we offer an account of how this works in practice. Second, we argue that
dialogue between the judiciary and legislature in this sense has benefits which greatly outweigh the
costs, and that it does not constitute a threat to judicial independence. Third, we illustrate those
benefits by analysing the practice of the UK Parliament at Westminster, where the judiciary regularly
give evidence to parliamentary committees, and with increasing frequency. In this respect the UK
differs markedly from other Westminster countries, showing how judicial independence can be
interpreted very differently even in countries with a shared legal and political tradition.
We start by defining our terms, in particular dialogue, judicial independence, and judicial
accountability. We then set the practice at Westminster in comparative perspective with a brief
survey of judicial evidence to the legislature in six other common law countries. The remainder of
the article focuses on Westminster, with quantitative and qualitative data about the nature of
judicial evidence, explaining which judges talk to which committees, and about what. To anticipate
our conclusions, we find the benefits are that Parliament hears at first hand from a wide range of
judges who are expert witnesses about the working of different parts of the justice system. It also
provides a forum in which the judiciary can meaningfully – if very gently – be called to account. For
the judiciary, it provides an opportunity to talk directly to Parliament, to overcome any
misunderstandings or mistrust, and to inform and influence legislative policy making at a formative
stage. This is a genuine dialogue with benefits for both sides.
Our research was conducted as part of a wider research project on the politics of judicial
independence in the UK’s changing constitution, funded by the AHRC. During that project we
interviewed 150 judges, parliamentarians, ministers and officials, and held a dozen seminars
(including three in Parliament). This article draws on that interview material, and on analysis of the
evidence given by judges to Westminster parliamentary committees.1 The dataset upon which the
analysis in this article is based is available on the Constitution Unit website.

Meaningful Dialogue: Judicial Engagement with Parliamentary Committees at Westminster

There is a common perception that, prior to the exclusion of serving judges from the House of Lords in 2009, a ‘politics convention’ operated which required judges to avoid party-political controversy and ensured that they contributed to debate only rarely. On this view, the presence of the Law Lords in parliament prior to 2009 presented a judicial independence and separation of powers problem in theory only. An examination of the contributions of serving Law Lords and other judicial peers to debates in the House of Lords from 1876–2009 (and retired judges from 1876–2015) reveals that the convention either did not exist or was frequently ignored. While most judges were infrequent participants in parliamentary debate, some were enthusiastic – a small number among the most active parliamentarians in the Lords. The most active judicial peers were conservative in their politics and the best predictor that a judge would be active in the House was an association with conservative politics or causes.

/pdf/judges-and-politics-the-parliamentary-contributions-of-the-1l1o82t6y4.pdf

Patrick O'Brien

Papers

The Politics of Judicial Independence in the UK's Changing Constitution

Never let a Crisis go to Waste: Politics, Personality and Judicial Self-Government in Ireland

Meaningful Dialogue: Judicial Engagement with Parliamentary Committees at Westminster

Judges and politics: the parliamentary contributions of the Law Lords 1876-2009

Meaningful Dialogue: Judicial Engagement with Parliamentary Committees at Westminster