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Jan van Zyl Smit

Biography Dr Jan van Zyl Smit joined the Bingham Centre for the Rule of Law as a Research Fellow in 2013. Much of his work at the Centre has focused on the use of legal frameworks to foster and protect the independence of the judiciary. He is the author of The Appointment, Tenure and Removal of Judges under Commonwealth Principles: A Compendium and Analysis of Best Practice   and was involved in the development of the Cape Town Principles on the Role of Independent Commissions in…

JUSTICE SYSTEMS

Julinda Beqiraj

Biography Dr. Julinda Beqiraj is Maurice Wohl Senior Research Fellow in European Law.  She leads and develops the research and events program in European law and publishes high-quality research for the Institute in this area; proactively pursues Institute-wide research projects in European law areas, (such as human rights trade and the environment), drawing on expertise from across the Institute, as appropriate; and contributes to the Bingham Centre's work on Access…

JUSTICE SYSTEMS

Prosecuting in the public interest: independence without isolation

In an essay to accompany an event on 18 September with the Bingham Centre for the Rule of Law, Max Hill QC, Director of Public Prosecutions for England and Wales, outlines what independence means for the Crown Prosecution Service in an extraordinary 2020 and beyond, and how it intersects with the Service's other values and responsibilities. Drawing on the experiences of the past six months, he considers what it means to remain independent while also being collaborative, responsive…

JUSTICE SYSTEMS

Special Processes for the Reassessment and Removal of Judges in Constitutional Transitions

Societies in transition to constitutional democracy face a difficult choice when their courts are staffed with judges from a period of conflict or authoritarian rule. Should the existing judiciary be given security of tenure - the standard protection for judicial independence - or instead face a special process that will examine their past and possibly lead to the removal of those judges who are considered unwilling or unable to serve with integrity and competence in the new era? From…

JUSTICE SYSTEMS

America risks confusing the Rule of Law with Rule by Law

Last weekend Donald Trump proclaimed himself America's president of "law and order", going on to demand the protection of the "crown jewel of American democracy: the rule of law and our independent system of justice". Calls for the rule of law are a common refrain among Republican presidents, yet current events in the US present a vivid reminder of the need to strictly differentiate between rule of law, and rule by law. The preposition is key: "rule of law" requires equality before the law…

GOVERNMENT+1

Instinct or rules: making moral decisions in the Cummings scandal

This piece has been cross-posted  with the kind permission of the UK Constitutional Law Association Blog.  How should individuals conduct themselves during a public health emergency, and more specifically how much reliance should we have on "instinct" and "rules"? Dominic Cummings, the Prime Minister's chief adviser, has been accused of breaking the social distancing rules. The allegations revolve around travelling from London to Durham to isolate himself and his family, as…

GOVERNMENT+1

Squaring the PSPP Circle: How a ‘declaration of incompatibility’ can reconcile the supremacy of EU law with respect for national constitutional identity

The German Constitutional Court's PSPP judgment  held that the Court of Justice of the European Union's Weiss judgment  on the legality of Decisions of the European Central Bank (ECB) did not have legal effect within Germany because it lacks the 'minimum of democratic legitimation' necessary under the Basic Law. The merits of the judgment have been debated  extensively . This contribution proposes a novel mechanism to resolve the exposed fault-line  between the supremacy…

JUSTICE SYSTEMS

Unity and Diversity in National Understandings of the Rule of Law in the EU (Reconnect deliverable 7.1)

The working paper aims to show that the rule of law is not only one amongst the few overarching constitutional principles that can together be regarded as undergirding all legal systems in Europe, but it is also a constitutional principle whose core meaning is consensual and well-defined. The paper submits that there is now a broad legal consensus in Europe on the core meaning of this principle, its minimum components, and how it relates to other key values such as democracy and respect…

CITIZENSHIP+2

Covid-19: When is a rule not a rule?

There has been some confusion over the extent of the Government's legal powers in the Covid-19 lockdown, and the precise status of a "rule". There is a difference between regulation and legislation. Voermans argues that legislation is the constitutionally authoritative form in which law is made by the state. Regulation is much broader and means any public intervention in a market or in society. Legislation means banning smoking in enclosed public spaces. Regulation includes the…

GOVERNMENT+1

Strengthening the Quality and Efficiency of Justice - Study 2016

Strengthening the Quality and Efficiency of Justice - Study 2016 Every two years, CEPEJ undertakes a regular process for evaluating judicial systems of the Council of Europe's member States. The Working Group on the evaluation of judicial systems (CEPEJ-GT-EVAL) which is in charge of the management of this process benefits from the support of scientific experts. Bingham Centre Maurice Wohl Senior Research Fellow, Dr. Julinda Beqiraj, contributed to the 2016 edition (2014…

JUSTICE SYSTEMS

Strengthening the Quality and Efficiency of Justice in Kosovo*

Strengthening the Quality and Efficiency of Justice in Kosovo* In the framework of the Council of Europe's Commission for the Efficiency of Justice (CEPEJ)/European Union Joint Action on "Strengthening the Quality and Efficiency of Justice in Kosovo", the CEPEJ is supporting Kosovo authorities in improving access to justice and promoting timely justice functioning with a high level of quality. Special focus is put on judicial data collection and management, with the support…

JUSTICE SYSTEMS

Strengthening the Quality and Efficiency of Justice in Albania (2018)

Strengthening the Quality and Efficiency of Justice in Albania (2018)   In the framework of the Council of Europe's Commission on the Efficiency of Justice (CEPEJ)/European Union Joint Action on "Strengthening the efficiency and quality of Justice in Albania" and in the context of the on-going reform process of the judiciary, CEPEJ is supporting Albanian authorities to increase the efficiency of the justice system in line with European standards. The Bingham Centre…

JUSTICE SYSTEMS

The future of Europe (Bucharest)

'The future of Europe' conference (Bucharest) Event - Tags Share Links Event - Timings and Location Overview Rule of Law backsliding in Central and Eastern Europe remains worrisome. Recently, the Venice Commission expressed serious concerns about ongoing judicial reform in Romania, while the European Commission has locked horns with Poland over Judicial appointments,…

GOVERNMENT+1

Let’s not divide the Supreme Court into Leavers and Remainers: the need for a better understanding of our judiciary has never been greater

On 24 September 2019 the UK Supreme Court found unanimously that the Prorogation of Parliament was unlawful. The Judges have already been subjected to attacks on social media by the 'Leave.EU' campaign resorting to the notorious 'Enemies of the People'  headline used by the Daily Mail in 2016. Before the judgment Jan van Zyl Smit (Senior Research Fellow and Acting Deputy Director of the Bingham Centre for the Rule of Law) argued that we should not divide the Supreme Court into Leavers…

BREXIT+1

Data Protection Impact Assessments as Rule of Law Governance Mechanisms

Rule of Law principles are essential for a fair and just society, and apply to government activities regardless of whether those activties are undertaken by a human or automated data processing. This paper by Swee Leng Harris, Bingham Centre Senior Policy Adviser, explores how Data Protection Impact Assessments (DPIAs) could provide a mechanism for improved Rule of Law governance of data processing systems developed and used for public purposes. Applying Rule of Law principles to two…

DIGITAL AGE+1

Judicial Vetting: The Forgotten Aspect of Argentina’s Transition

This comment was first published on the Opinio Iuris blog on 18 February 2019. Argentina is a well-known case of transitional justice. From the pioneering 1984 truth commission and the prosecutions that had to be rolled back due to military backlash, to the expansive trials of crimes against humanity since 2005, Argentina's responses to the human rights violations of the 1976-83 dictatorship have been widely reported. However, there is one facet of the human rights policy adopted…

JUSTICE SYSTEMS

Bangalore Principles on the Domestic Application of International Human Rights Norms

This Report was first published on the UK Human Rights Blog. Conference Report The evolution of international human rights law (IHRL) in the UN era has seen a paradigm shift away from a view of international law as applying solely to states and their relations with other states, to a focus on the rights of individuals and the duties states owe to citizens. As articulated in the Universal Declaration of Human Rights, certain rights are so fundamental as to be universal in scope based on our…

JUSTICE SYSTEMS

After Poland's Attempted Purge of 'Communist-era' Judges, Do We Need New International Standards?

This comment was first published on the UK Constitutional Law Association blog in two parts, on 15 and 16 January 2019.  For most of last year, the government of Poland maintained that legislation which effectively dismissed 27 Supreme Court judges (a third of the Court) by lowering the age of retirement was necessary to deal with the continued influence of the 'Communist-era' judiciary. A few judges who remained in office from before the 1989 transition were said to be responsible…

JUSTICE SYSTEMS

Justice Week 2018

The regulators of lawyers in England and Wales run an annual campaign called 'Justice Week'. This initiative aims to boost the profile of justice and the rule of law, helping to place them at the centre stage of public and political debate. With many parts of the system at breaking point, now is the time to make a strong and clear case for why they are so fundamental to our society, economy and democracy. During the week the Bingham Centre convened politicians to discuss the rule of law…

CITIZENSHIP+1

Ombudsman schemes and effective access to justice

Access to justice is both a fundamental right in itself and a precondition for the enjoyment of other rights. Its conceptualisation requires the inclusion of dispute resolution mechanisms as part of both formal and informal justice institutions, especially in the wake of increasing awareness of the limitations of courts and tribunals as redress mechanisms.  In 2018 the International Bar Association's Access to Justice and Legal Aid Committee has commissioned the Bingham Centre for…

JUSTICE SYSTEMS

Access to Legal Aid in civil, administrative and family justice systems

Bingham Centre collaboration with the International Bar Association (IBA) The IBA Bar Issues Commission and the IBA Access to Justice and Legal Aid Committee undertook a comparative study to review access to legal aid in civil, administrative and family justice systems. The project originated from a very successful Legal Aid Roundtable in conjunction with the IBA Mid-Year Conference in May 2017 in Belfast. For Phase 1 of the project, the Bingham Centre for the Rule of Law was commissioned…

JUSTICE SYSTEMS

How Reckless Judicial Impeachments Threaten Rule Of Law

This article was first published on 31 August 2018 by Law360.com under the title "How Reckless Judicial Impeachments Threaten Rule Of Law ".  The article may not be reproduced without the original publisher's consent. Developments in West Virginia and other US State Courts What happens when legislators try to remove an entire Supreme Court bench? This is not a question about dictatorships or sham democracies. On 7 August 2018, the West Virginia House of Delegates voted to impeach all…

JUSTICE SYSTEMS

Safeguarding the Rule of Law

Published in The Washington Times  on 28 August 2018 The Senate hearings to consider Judge Brett Kavanaugh's nomination to the U.S. Supreme Court will likely be among the most partisan this country has seen.  In recent years, the process to both nominate and confirm candidates to the court has become polarizing to the point of dysfunctionality. This year the stakes are as high as they've ever been — the possibility of locking in a five-person conservative majority for years to…

JUSTICE SYSTEMS

The Polish government’s assault on judicial independence is part of a worldwide trend

In this op-ed piece, the Director of the Bingham Centre argues that the assault on judicial independence in Poland, with the passage of the Supreme Court Bill, is part of a global phenomenon, whereby populist leaders in a number of countries are steadily eroding the independence of the judiciary, which is a crucial aspect of the Rule of Law. Read the full Opinion piece in the Washington Post 

JUSTICE SYSTEMS

Supreme Court Justices from US, UK and Canada Speak on Judicial Independence

The Importance of Judicial Independence to the Rule of Law Panel discussion jointly organised by the Bingham Centre for the Rule of Law and the New York City Bar. Speakers Justice Stephen Breyer, Associate Justice, US Supreme Court Lord John Dyson, Former UK Supreme Court Justice and Master of the Rolls Justice Beverley McLachlin, Former Chief Justice of Canada Moderator Murray Hunt, Director of the Bingham Centre for the Rule of Law What is judicial independence? Why does it matter to the…

JUSTICE SYSTEMS

The Appointment of Judges by Independent Commissions in the Commonwealth

One of the most sensitive tasks in a constitutional democracy is the selection and appointment of judges. In contrast to the frequently confrontational US processes, or the 'tap on the shoulder' by a government minister that was the norm for so long in the UK and its former colonies, a 'third way' of appointing judges has become strikingly popular. This is to entrust the task to an independent Judicial Service Commission or Judicial Appointment Commission with a broad membership that…

JUSTICE SYSTEMS

Securing Judicial Independence: The Role of Commissions in Selecting Judges in the Commonwealth

Editors: Hugh Corder and Jan van Zyl Smit This book brings together essays on the judicial selection practices in Canada, England and Wales, Kenya, Malaysia, Nigeria and South Africa. Written by experts from each jurisdiction who participated in an international research project convened by the University of Cape Town Law Faculty and the Bingham Centre for the Rule of Law, they provide the scholarly foundation for the Cape Town Principles, which are reproduced in the book together…

JUSTICE SYSTEMS

Access to justice for persons with disabilities: From international principles to practice

Approximately one billion people, or 15 per cent of the global population, experience some form of disability. Persons with disabilities face disproportionate socio-economic marginalisation, resulting in poorer health and medical treatment, lower quality of education, limited employment prospects and generally broad-ranging restrictions on their community participation. These negative outcomes are exacerbated by barriers to access to justice specifically experienced by persons with…

JUSTICE SYSTEMS

Access to Justice for Persons with Disabilities From International Principles to Practice

Participants: Julinda Beqiraj, Lawrence McNamara, Victoria Wicks In 2018, the International Bar Association's Access to Justice and Legal Aid Committee commissioned the Bingham Centre for the Rule of Law to conduct an international study on access to justice for persons with disabilities and the challenges they face, whether as accused, victims, witnesses, or bearers of other interests. The resulting report explored how a rights-based approach grounded in effective access to justice could…

JUSTICE SYSTEMS

Opinion on certain provisions of the draft Act on the Supreme Court of Poland

A Bill which set out drastic changes to the tenure, disciplinary system and operating procedures of the Supreme Court was introduced by the Polish government in July 2017 and rushed through most of its legislative stages in a matter of days. This action sparked large-scale public protests before the President of Poland referred the Bill back to the legislature for reconsideration. The Director of the Bingham Centre, Murray Hunt, was one of a group of experts invited to analyse the Bill…

JUSTICE SYSTEMS

Judicial Independence in Latin America

This report examines some of the main ways legal systems can support and maintain judicial independence, a vital element of the Rule of Law. It considers the approach of Latin American jurisdictions in light of international principles. The report was written for a Bingham Centre for the Rule of Law conference, "Rule of Law Challenges in Latin America: Corruption and Judicial Independence", held in São Paulo in April 2016. It was presented as part of a panel discussion on judicial independence,…

JUSTICE SYSTEMS

Children and Access to Justice: National Practices, International Challenges

The IBA's Access to Justice and Legal Aid Committee has commissioned the Bingham Centre for the Rule of Law to undertake research on main barriers to access to justice for children and good practices across jurisdictions in this area. The co-chair of the IBA Access to Justice and Legal Aid Committee, Lucy Scott-Moncrieff CBE, said: "This report, is designed to improve access to justice for children across the world, by identifying the barriers they face in different jurisdictions, but…

JUSTICE SYSTEMS

Cape Town Principles on the Role of Independent Commissions in the Selection and Appointment of Judges

What are the Cape Town Principles? One of the most sensitive tasks in a constitutional democracy is the selection and appointment of judges. In South Africa, the bulk of this work has been entrusted to the Judicial Service Commission that was established in 1994. Similar bodies now exist in many jurisdictions across the developed and the developing world. The Cape Town Principles are a set of principles that build on that international and comparative experience. They aim to provide practical…

JUSTICE SYSTEMS

Strengthening the Quality and Efficiency of Justice

Expert support to the activities of the Council of Europe's Commission for the Efficiency of Justice (CEPEJ) The European Commission for the Efficiency of Justice (CEPEJ) was established by the Committee of Ministers of the Council of Europe in 2002, with the aim to improve the efficiency and functioning of justice in the member States and the implementation of the instruments adopted by the Council of Europe to this end. Its activities include preparation of benchmarks, data collection…

JUSTICE SYSTEMS

Judicial Review and the Rule of Law: An Introduction to the Criminal Justice and Courts Act 2015, Part 4

Judicial review is a legal process by which individuals can challenge decisions made by public authorities on the basis that they are unlawful, irrational, unfair or disproportionate. It is a directly accessible check on abuse of power, a means of holding the executive to account, increasing transparency, and of providing redress when public agencies and central Government act unlawfully. In a country without a written constitution, it plays a particularly important role. The Criminal…

JUSTICE SYSTEMS

International Access to Justice: Legal Aid for the Accused and Redress for Victims of Violence

The International Bar Association (IBA) provides assistance to the global legal community with the aim of influencing the development of law reform and promoting the highest professional standards and the rule of law throughout the world.  As part of that mission, the IBA Access to Justice and Legal Aid Committee, formed in 2013, has undertaken and commissioned research into issues it sees as being of prime contemporary importance. This study, the Committee's second project, focuses…

JUSTICE SYSTEMS

The Appointment, Tenure and Removal of Judges under Commonwealth Principles: A Compendium and Analysis of Best Practice

July 2015  An independent, impartial and competent judiciary is essential to the Rule of Law. This study considers the legal frameworks used to achieve this and examines trends in the 53 member states of the Commonwealth. It asks: who should appoint judges and by what process? what should be the duration of judicial tenure and how should judges' remuneration be determined? what grounds justify the removal of a judge and who should carry out the necessary investigation and inquiries?…

JUSTICE SYSTEMS

International Access to Justice: Barriers and Solutions

As part of a project funded by the International Bar Association's Access to Justice and Legal Aid Committee, the Bingham Centre conducted an important international survey on barriers to access to justice and the attempts made to overcome them in different jurisdictions. The project aimed to analyse the extent to which individuals and groups in different countries are able to use formal and informal justice systems, legal services and dispute resolution mechanisms to solve their justice…

JUSTICE SYSTEMS

Streamlining Judicial Review in a Manner Consistent with the Rule of Law

Report by: Michael Fordham QC, Martin Chamberlain QC, Iain Steele and Zahra Al-Rikabi Judicial review is the mechanism by which the courts hold public authorities to account for the legality of their conduct. It is the reason we can be confident that Ministers and other public bodies will do what Parliament has authorised and required them to do, and act in accordance with their common law duties. It is the mechanism by which individuals and businesses are protected from official…

JUSTICE SYSTEMS

The Rule of Law in Burma/Myanmar

The Bingham Centre has been engaged in a range of work relating to Burma (Myanmar) since early 2013. This has included several visits to the country, a major Constitutional Awareness project, publications about constitutional reform in Burma, and evidence to the UK House of Commons. The underlying philosophy and approach of the Bingham Centre's 2014-2015 project was that while there are international standards for constitutionalism, democracy and the rule of law, there are different options…

JUSTICE SYSTEMS
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