Judicial Education and Judicial Independence: Paper given at the 2021 Commonwealth Law Conference

The link between judicial education and an efficient judiciary is, one hopes, obvious. But in order to ensure judicial independence, contemporary wisdom has it, judicial education should also be in the hands of the judiciary. Absent such control, there is a risk that judges may be indoctrinated by interested actors and their independence compromised.

Some critics, however, have been sceptical about judicial control of judicial education. Judicial control of education often justified on basis of expertise as well as need to protect independence. But judges are not pedagogues (and their view of what judging does, or should, entail are often untheorized). Nor are they particularly representative of society. In addition, a danger unmitigated by judicial control of judicial education is regulatory capture, defined as ‘the result or process by which regulation, in law or application, is consistently or repeatedly directed away from the public interest and toward the interests of the regulated industry, by the intent and action of the industry itself'. Even if other voices are integrated into discussions, the danger exists that they might seek to subvert the process to privilege their interests over the general interest.

Such concerns have recently been raised in England and Wales with regard to the Equal Treatment Bench Book. The paper examines the relationship between judicial education and judicial independence through the lens of this controversy. It concludes that when judicial education trespass on the independence of the individual judge is not an easy question to answer (not least because education is always about socialization) but, crucially, it is not one answered by putting judicial education in the hands of the judiciary.