United Kingdom Supreme Court: Guide to Judicial Conduct (2019)
FOREWORD BY THE RT HON LADY HALE
PRESIDENT OF THE UK SUPREME COURT
Every court should have a Code of Judicial Conduct that sets out the standards of ethical conduct to be expected of the Court. Such a Code serves a number of purposes. It provides guidance to the members of the Court. It informs those who use the Court of the standards that they can reasonably expect of its judges.
It explains to members of the public how judges behave and should help to secure their respect and support for the judiciary. This Guide was first prepared by and for the Justices of the Supreme Court when the Court was established in 2009 and has been revised to coincide with the Court’s tenth anniversary in 2019. It has the approval and support of each of the Justices.
A separate guide exists for the Judicial Committee of the Privy Council.
GUIDE TO JUDICIAL CONDUCT
1 INTRODUCTION
1.1 The President, Deputy President and Justices of the United Kingdom Supreme Court (collectively referred to hereafter as ‘the Justices’) have decided to adopt this Guide to their judicial conduct. Such guides have become commonplace in recent years.
1 There are now equivalent guides for the judiciary in England and Wales, Scotland and Northern Ireland.
1.2 The Justices have drawn upon the Bangalore Principles of Judicial Conduct, endorsed by the United Nations Human Rights Commission in 2003 and published with a commentary in 2007. The intention of the Principles is to establish standards of ethical conduct for judges, to provide guidance for individual judges and the judiciary in regulating judicial conduct, and also to assist members of the executive and legislature, lawyers and the public, better to understand and support the judiciary. The principles are stated as six “values”:
(i) Judicial independence is a prerequisite to the rule of law and a fundamental guarantee of a fair trial. A judge shall therefore uphold and exemplify judicial independence in both its individual and institutional aspects.
(ii) Impartiality is essential to the proper discharge of the judicial office. It applies not only to the decision itself but also to the process by which the decision is made.
(iii) Integrity is essential to the proper discharge of the judicial office.
(iv) Propriety, and the appearance of propriety, are essential to the performance of all of the activities of the judge.
(v) Ensuring equality of treatment to all before the courts is essential to the due performance of the judicial office.
(vi) Competence and diligence are prerequisites to the due performance of judicial office.
1 Eg Canadian Judicial Council, Ethical Principles for Judges (1998); Council of Chief Justices of Australia, Guide to Judicial Conduct (2002).
2 Courts and Tribunals Judiciary, Guide to Judicial Conduct (2018); Statement of Principles of Judicial Ethics for the Scottish Judiciary (revised December 2016); A Statement of Ethics for the Judiciary of Northern Ireland (2nd Revision 5 August 2011).
1.3 The Justices believe that those principles are already well understood by
the judiciary, executive and legislature in the United Kingdom. The specific
guidance given below, much of which might be thought to go without
saying, follows the same pattern. There is considerable overlap between
the principles.
1.4 The primary responsibility for deciding whether a particular activity or
course of conduct is appropriate rests with the individual Justice. The
interests of justice must always be the overriding factor. There is also a
range of reasonably held opinions on some points. In cases of doubt, a
Justice should seek the advice of the President or Deputy President of the
Court.
2 INDEPENDENCE
2.1 The judiciary of the United Kingdom have been independent of the government since at least the early 18th century. The Supreme Court of the United Kingdom was established in order to achieve the physical separation of the country’s highest court from the House of Lords and thus to clarify the Justices’ independence both of government and of Parliament.
Judicial independence is a cornerstone of our system of government in a democratic society and a safeguard of the freedom and rights of the citizen under the rule of law. The Justices will take care that their conduct, official or private, does not undermine their institutional or individual independence
or the public appearance of independence.
2.2 The Justices have all sworn the judicial oath, which states:
“I will do right to all manner of people after the laws and usages of this Realm, without fear or favour, affection or ill-will.”
In taking that oath, each Justice has acknowledged that he or she is primarily accountable to the law which he or she must administer. This involves putting aside private interests and preferences and being alert to attempts to influence decisions or curry favour.
2.3 The Justices may consult with their colleagues when points of difficulty
arise on matters of conduct. But they are solely responsible for the
decisions that they take in the performance of their judicial duties.
2.4 The Justices must be immune to the effects of publicity, whether favourable
or unfavourable. But that does not mean ignoring the profound effect which
their decisions are likely to have, not only on the parties before the Court,
but also upon the wider public whose concerns may well be forcibly
expressed in the media.
2.5 The Justices accept their responsibility to promote public understanding of their work and of their decisions. But they will show appropriate caution and restraint when explaining or commenting publicly upon their decisions in individual cases.
2.6 If a Justice is misquoted or misrepresented in the media, the matter will be handled by the Court’s communications officer in consultation with the Justice.
3 IMPARTIALITY
3.1 Each Justice will strive to ensure that his or her conduct, both in and out of court, maintains and enhances the confidence of the public, the legal profession and litigants in the impartiality of the individual Justice and of the Court.
3.2 Each Justice will seek to avoid extra-judicial activities that are likely to cause him or her to have to refrain from sitting on a case because of a reasonable apprehension of bias or because of a conflict of interest that would arise from the activity.
3.3 Each Justice will refrain from any kind of party political activity and from
attendance at political gatherings or political fundraising events, or
contributing to a political party, in such a way as to give the appearance of
belonging to a particular political party. They will also refrain from taking
part in public demonstrations which might diminish their authority as a judge
or create a perception of bias in subsequent cases. They will bear in mind
that political activity by a close member of a Justice’s family might raise
concern in a particular case about the judge’s own impartiality and
detachment from the political process.
3.4 However, the Justices recognise that it is important for members of the Court to deliver lectures and speeches, to take part in conferences and seminars, to write and to teach and generally to contribute to debate on matters of public interest in the law, the administration of justice, and the judiciary. Their aim is to enhance professional and public understanding of the issues and of the role of the Court.
3.5 In making such contributions, the Justices will take care to avoid associating themselves with a particular organisation, group or cause in such a way as to give rise to a perception of partiality towards that organisation (including a set of chambers or firms of solicitors), group or cause in the conduct of their judicial duties.
3.6 In their personal relations with individual members of the legal profession, especially those who practise regularly in the Supreme Court, the Justices will avoid situations which might reasonably give rise to the suspicion or appearance of favouritism or partiality.
Bias and the appearance of bias
3.7 The question whether an appearance of bias or possible conflict of interest
is sufficient to disqualify a Justice from taking part in a particular case is the
subject of United Kingdom and Strasbourg jurisprudence which will guide
the Justices in specific situations. Leading UK cases include Porter v Magill
[2002] 2 AC 357, Locobail (UK) Ltd v Bayfield Properties Ltd [2002] QB
451, Re Medicaments and Related Classes of Goods (No.2) [2001] 1 WLR
700, Helow v Secretary of State for the Home Department [2008] 1 WLR
2416 and Stubbs v The Queen [2018] UKPC 30.
3.8 Circumstances will vary infinitely and guidelines can do no more than seek to assist the individual Justice in the judgment to be made, which involves, by virtue of the authorities, considering the perception the fair-minded and informed observer would have. What follows are merely signposts to some of the questions which may arise.
3.9 A Justice will not sit in a case where:
(i) he or she has a close family relationship with a party or with the spouse or domestic partner of a party;
(ii) his or her spouse or domestic partner was a judge in a court below;
(iii) he or she has a close family relationship with an advocate appearing before the Supreme Court.
3.10 Sufficient reasons for not sitting on a case include:
(i) personal friendship with, or personal animosity towards, a party; friendship is to be distinguished from acquaintance, which may or may not be a sufficient reason depending upon its nature and extent;
(ii) current or recent business association with a party; this includes the Justice’s own solicitor, accountant, doctor, dentist or other professional adviser; it does not normally include the Justice’s insurance company, bank or a local authority to which he or she pays council tax.
3.11 Reasons which are unlikely to be sufficient for a Justice not to sit on a case, but will depend upon the circumstances, include:
(i) friendship or past professional association with counsel or solicitors acting for a party;
(ii) the fact that a relative of the Justice is a partner in, or employee of,
a firm of solicitors or other professional advisers involved in a case;
much will depend upon the extent to which that relative is involved in
or affected by the result in the case;
(iii) past professional association with a party as a client; much will depend upon how prolonged, close, or recent that association was.
3.12 A Justice will not sit in a case in which he or she or, to his or her
knowledge, a member of his or her family has any significant financial
interest in the outcome of the case. ‘Family’ for this purpose means
spouse, domestic partner or other person in a close personal relationship
with the Justice; son, son-in-law, daughter, daughter-in-law; and anyone
else who is a companion or employee living in the Justice’s household. It
is for the Justices to inform himself or herself about his or her personal
financial and fiduciary interests and to take reasonable steps to be
informed about the interests of members of his or her family.
3.13 A significant financial interest could arise, not from an interest in the
outcome of the particular case, but where the decision on the point of law
might have an impact upon the Justice’s own financial interests. The
Justice will have regard to the nature and extent of his or her interest and
the effect of the decision on others with whom he or she has a relationship,
actual or foreseeable.
3.14 Previous participation in public office or public debate on matters relevant
to an issue in a case will not normally be a cause for a Justice not to sit,
unless the Justice has thereby committed himself or herself to a particular
view irrespective of the arguments presented to the Court. This risk will
seldom, if ever, arise from what a judge has said or decided in other
cases, or from previous findings against a party in other litigation.
3.15 If circumstances which may give rise to a suggestion of bias, or the
appearance of bias, are present, they should be disclosed to the parties
well before the hearing, if possible. Otherwise the parties may be placed in
a difficult position when deciding whether or not to proceed. Sometimes,
however, advance notification may not be possible.
3.16 Disclosure should be to all parties and, unless the issue has been resolved
before the hearing, discussion should be in open court. Even where the
parties consent to the Justice sitting, the Justice should recuse himself or
herself if, on balance, he or she considers that this is the proper course.
Conversely, there are likely to be cases in which the Justice has thought it
appropriate to bring the circumstances to the attention of the parties but,
having considered any submissions, is entitled to and may rightly decide to
proceed notwithstanding the lack of consent.
4 INTEGRITY
4.1 As a general proposition, the Justices are entitled to exercise the rights and freedoms available to all citizens. There is a public interest in their participating, insofar as their office permits, in the life and affairs of the community. The Justices also have private and family lives which are entitled to the same respect as those of other people.
4.2 However, the Justices accept that the nature of their office exposes them to considerable scrutiny and puts constraints on their behaviour which other people may not experience. They are conscious that it is a privilege to serve the community in this capacity. They will try to avoid situations which might reasonably lower respect for their judicial office, or cast doubt upon their impartiality as judges, or expose them to charges of hypocrisy. They will try to conduct themselves in a way which is consistent with the dignity of their office.
4.3 In Court, the Justices will seek to be courteous, patient, tolerant and punctual and to respect the dignity of all.
4.4 No Justice, or member of a Justice’s family, will ask for or accept any gift, bequest, loan or favour in relation to anything done or to be done or omitted to be done by the Justice in connection with his or her judicial duties.
5 PROPRIETY
5.1 The Justices will avoid impropriety and the appearance of impropriety in all of their activities. They will not exploit the prestige of their office to obtain personal favours or benefits.
5.2 A Justice may not practise law while in full time office: see Courts and Legal Services Act 1990, s 75 and Schedule 11.
5.3 The Justices will not use or lend the prestige of their office to advance their own private interests, or those of a member of their family or of anyone else, nor will they convey or permit others to convey the
impression that anyone is in a special position improperly to influence the Justice in the performance of his or her judicial duties.
5.4 Confidential information acquired by a Justice in his or her judicial capacity will not be used or disclosed by the Justice for any purpose not related to his or her judicial duties.
Outside activities
5.5 Justices may form or join associations of judges or participate in other organisations representing the interests of judges.
5.6 Justices may appear at a public hearing before a Parliamentary committee or official body concerned with matters relating to the law, the legal system, the administration of justice or related matters.
5.7 Justices may serve as a member of an official body, or other government commission, committee or advisory body, if such membership is not inconsistent with the perceived impartiality and political neutrality of a judge.
5.8 Justices may engage in other academic, voluntary, charitable or religious activities which do not detract from the dignity of their office or otherwise interfere with the performance of their judicial duties.
5.9 Subject to those constraints, Justices may properly be involved in the management of educational, voluntary, charitable or religious organisations.
Care should be taken in allowing their name to be associated with an appeal for funds, even for a charitable organisation, lest it be seen as inappropriate use of judicial prestige in support of the organisation or creating a sense of obligation in donors.
5.10 Justices who hold high office in universities and similar institutions bear in mind the desirability of avoiding involvement in controversial situations.
Moreover, in considering whether to accept office and what role to play, Justices should bear in mind the trend of some such bodies to be more entrepreneurial and to resemble a business. The greater the move in that direction, the less appropriate judicial participation may be.
Commercial activities
5.11 The requirements of a Justice’s office and terms of service place severe restraints upon the permissible scope of his or her involvement with any commercial enterprise. Some guidance is given in the decided cases referred to earlier.
5.12 The management of family assets and the estates of deceased close family members, whether as executor or trustee, is unobjectionable, and may be acceptable for other relatives or friends if the administration is not complex, time-consuming or contentious. However, the risks, including the risk of
litigation, associated with the office of trustee, even of a family trust, should not be overlooked and the factors involved need to be weighed carefully before office is accepted.
5.13 A full-time Justice will not receive any remuneration other than a judicial salary except for fees and royalties earned as an author or editor but may of course receive money from investments or property.
Gifts and hospitality
5.14 Caution should be exercised when considering whether to accept any gift or hospitality. Justices will be wary of accepting any gift or hospitality which might appear to relate in some way to their judicial office and might be construed as an attempt to attract judicial goodwill or favor.
5.15 Although Justices cannot be remunerated for giving talks or lectures or participating in events, the acceptance of a gift or hospitality of modest value, as a token of appreciation, may be unobjectionable, depending on the circumstances. For example, a Justice who makes a speech or takes part in some public or private function should feel free to accept a small token of appreciation; this may include a contribution to charity.
5.16 By way of further example, the acceptance of invitations to lunches and dinners by legal and other professional and public bodies or officials, where attendance can be reasonably seen as acting in a public or professional capacity, carrying no degree of obligation, is entirely acceptable.
5.17 There is a long-standing tradition of association between the bench and the bar, the solicitors’ profession and other professions providing legal services.
This occurs both on formal occasions, such as dinners, and less formal ones. However, Justices will be cautious when invited to take part in what may be legitimate marketing or promotional activities, for example by barristers’ chambers or solicitors’ firms, or professional associations, where the object of judicial participation may be perceived to be the impressing of clients or potential clients.
They will also take care not to associate with individual members of the profession who are engaged in current or pending cases before the Court in such a way as to give any appearance of partiality.
References and social activities
5.18 Justices may give references for professional competence or character for
people who are well known to them. A person should not be deprived of a
reference because the person best able to give it is a Justice. Giving
character evidence in court or otherwise is not excluded, particularly where it
may seem unfair to deprive the person concerned of the benefit of such
evidence, but this should be undertaken only exceptionally. Consultation with
the President or Deputy President of the Court is advisable before taking a
decision to give evidence.
5.19 Justices will assess social and other activities in the light of their duty to maintain the dignity of their office and not to permit associations which may affect adversely their ability to discharge their duties.
Online presence and social media
5.20 Justices are aware that their extra-judicial activities include their online
presence; they will bear in mind that online discussions are not private, that
comments may be copied and have an unintended readership and longevity;
and that it is increasingly easy to piece together information on a Justice from
a variety of sources. They will be wary of publishing online any more personal
information than is necessary and will exercise extreme caution in discussing
both judicial and personal matters. This includes their participation in social
media.
6 EQUALITY
6.1 A Justice should be aware of, and understand, diversity in society and differences arising from matters such as gender, race, ethnicity, colour, national origin, religion, caste, disability, birth or marital status, sexual orientation, socioeconomic or educational or occupational background, and the like. A Justice will not, by words or conduct, show any bias against or preference towards any person or group on any such ground.
6.2 In court, the Justices will strive to ensure that no one in the court is exposed to
any display of bias or prejudice on any such ground and that all are treated with
equal respect by the Justices, their staff and everyone appearing in or attending the
court. The court will strive to make reasonable adjustments for people with disabilities
and for those who wish to manifest their religion, so far as it is practicable to do so.
7 COMPETENCE AND DILIGENCE
7.1 As Lord Bingham of Cornhill stated in his 1993 lecture to the Society of Public Teachers of Law, entitled Judicial Ethics:
“It is a judge’s professional duty to do what he reasonably can to equip himself to discharge his judicial duties with a high degree of competence.”
Plainly this requires the judge to take reasonable steps to maintain and enhance the judge’s knowledge and skills necessary for the proper performance of judicial duties, to devote the judge’s professional activity to judicial duties and not to engage in conduct incompatible with the diligent discharge of such duties.
7.2 Beyond stating those general propositions, it is not seen as the function of this guide to consider judicial duties and practice with respect, for example, to judgment writing and participation in judicial education. These topics are better dealt with, insofar as they are not prescribed in the rules of the
Supreme Court, in Practice Directions or in case law, by guidance from the President or Deputy President of the Court, and in discussion amongst the Justices.
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