The independence of the judiciary is a cornerstone of a democratic society and a safeguard for people’s freedom and rights under law.
The key elements of judicial independence are impartiality, integrity and freedom from interference.
Legislation places a duty on all government ministers; law officers; and members of the parliaments to uphold judicial independence, barring them from trying to exert influence over judicial decisions.
Judicial independence is further protected by restrictions on removal from office, and a general immunity from being sued or prosecuted for work carried out as a judge.
Before retiring at age 70, full-time, salaried judges can only be removed from office if they are found to be unfit due to inability, neglect of duty, or misbehaviour. The removal of a judge involves certain defined procedures which must be followed.
To be impartial, judges base their decisions solely on the law and on the facts and evidence of the case in court.
All judges take the judicial oath, acknowledging their accountability to the law by pledging: “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”.
Read more about judicial independence.
The statement of principles of judicial ethics, a widely accepted framework of judicial ethics, helps to ensure that both the judiciary and the public are aware of the principles which guide judges.
The role of a judge is to interpret the law without bias or prejudice. Cases are primarily allocated to judges based on their availability. The specialisations and expertise of individual judges may also be a factor, such as in commercial matters, or intellectual property cases.
Judges will excuse themselves from hearing a case (called a recusal) if they have a personal interest in it, for example if they are closely related to someone directly involved in the case or have a financial interest in the outcome. More minor conflicts which would not disqualify a judge from hearing a case may be declared before the court. The parties to the case can then either object to the judge’s involvement, or, if the potential interest is not felt to be significant enough, agree to proceed.
Like everyone else, judges are subject to the law, and may be found guilty of criminal offences or be subject to civil proceedings.
Judicial decisions can have a profound effect on the lives of people before the court, as well as on matters of public interest. The judges making those decisions must uphold the highest standards of professional and personal conduct, both in and out of court. The judiciary in Scotland has an honourable tradition in attaining these high standards.
Salaried (full-time) judges are not allowed to receive money from any other form of employment, except, for example, for a fee or royalties earned as an author or editor. They should also be careful in accepting gifts or hospitality in order to preserve their independence.
Judges can hold shares in commercial companies, although there is an established practice that salaried judges should not hold commercial directorships for profit. Judges are expected to resign from such posts on appointment.
However, a judge may still be involved in non-profit roles or the management of family businesses.
Fee-paid judges, that is, part-time sheriffs and temporary judges (who do not also hold a full-time judicial office) can continue to work when not sitting as a judge. Typically they will be practising advocates, solicitor-advocates or solicitors. However, holders of a part-time appointment as a sheriff cannot be employed by the Government Legal Service for Scotland (GLSS) or the Crown Office and Procurator Fiscal Service (COPFS).
Some fee-paid (part-time) judicial office holders may own part or all of a business, for example, solicitors owning part of their practice.
Justices of the peace are unpaid members of the community and are drawn from wide ranging backgrounds, so may also hold all sorts of other jobs.
Judges should have no involvement in political activity other than exercising their right to vote. On appointment, any ties with a political party or organisation must be severed.
Justices of the peace and part-time fee paid judges are free to have party political involvement, but must nevertheless ensure that this has no effect upon their independence when acting in their judicial role.
REGULATION OF THE LEGAL PROFESSIONS
Regulatory responsibility must lie with the Court and the Lord President in order to ensure the independence of the legal professions and the judiciary. The courts often decide disputes between citizens and the State and lawyers advise clients in those disputes. This means the courts and lawyers must always be entirely independent of the State in order to protect the rights of citizens and the rule of law. This is a fundamental part of democracy. Read more about the independent regulation of the legal professions.