Paul Daly (University of Ottawa – Common Law Section) has posted An Institutional Approach to Judicial Independence and Accountability on SSRN. Here is the abstract:
My goal in this contribution is to set out and defend an institutional approach to judicial independence and accountability, drawing on the jurisprudence of the Supreme Court of Canada. By “institutional approach”, I mean an approach that focuses on the institutions designed to secure judicial independence and accountability.
In this regard, I will draw on the literature relating to so-called fourth branch or integrity institutions, explaining how the Supreme Court anticipated the key characteristics of expertise, independence and accountability, providing a workable model for other jurisdictions. Across the three aspects of judicial independence—financial security, security of tenure and administrative autonomy—the Supreme Court’s approach requires the implementation of arm’s length institutional mechanisms, interposed between law and politics. These fourth branch or integrity institutions ensure that judges can resolve disputes between private parties or between private parties and the state according to their view of the merits of the cases that come before them, all in the service of public confidence.
Judicial accountability is another matter, as the available mechanisms do not quite have the character or cohesion of the institutions developed to protect judicial independence. Nonetheless, by focusing on the concept of explanatory accountability, I explain how judges are accountable through their reasons for decision and how, in turn, these reasons open up access to institutional mechanisms in the political sphere that can reverse judicial decisions. But these mechanisms should be used carefully and in furtherance of their true purpose, namely ensuring judicial accountability through proper channels, not dragging judges into political controversy.
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