Independence of Judiciary

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  • Created by: Francesca
  • Created on: 12-04-14 11:28
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  • Independence of Judiciary
    • Definition: The principle that members of the judiciary should remain independent from any influence by government or parties or other political movements
    • How is it maintained?
      • Security of tenure
        • Judges appointed for an open-ended term
          • Only limit - must retire by age of 75
        • Politicians cannot seek to bring influence by threatening to sack or suspend them
      • Guaranteed salaries paid from the Consolidation Fund
        • beyond everyday political control
          • Cannot be altered with aim of putting pressure on them
        • Judges free to make decisions they see fit - without fear of financial penalty
        • Politicians unable to offer financial inducements to make the decision they want
      • The offence of contempt of court
        • Under sub judice rules - media, ministers and other individuals - prevented from publicly speaking out during legal proceedings
        • Ensure justice is administered fairly
          • without undue pressure from politicians or the public
      • A growing separation of powers
        • Downgrading of the post of Lord Chancellor
          • Previously held significant roles in all branches of government
        • Creation of a new UK Supreme Court
          • Enhanced separation between the senior  judiciary and other branches of government
            • Prior to changes - most senior judges - Law Lords - sat in HoL
      • Independent appointments system
        • The Constitutional Reform Act 2005 - creation of an Independent Judicial Appointments Commission
        • Brought greater transparency to process of judicial appointments
          • Address concerns that previous system had been open to political bias
      • Background of Senior Judges
        • Most have served an 'apprenticeship' as barristers and come to the bench having achieved a certain status within their chosen profession
        • Take considerable pride in their legal standing
          • Unlikely to defer to politicians or public opinion - would be seen to compromise their judiciary integrity
    • Effectiveness of Independence
      • There is still some political input into senior appointments, despite the Commission
      • Politicians,  often publicly criticise rulings handed down by senior judges
        • E.g. In 2013 - Home Secretary, Theresa  May accused judges of making the UK a more dangerous place by disregarding rules aimed at deporting foreign criminals
          • Saying that some judges were using Article 8 of the ECHR (the right to a family life) to justify granting foreign criminals the right to remain in the UK
      • It is argued that the Supreme Court is only a ‘cosmetic’ exercise.
      • No way of entrenching this independence - principle of parliamentary sovereignty means that it effectively rests on the will of the HoC and HoL
      • Judges are ultimately appointed by the executive and PMs can exercise their power of veto
      • Although Justice Ministry does not exert direct control over judges, it still exercises considerable influence over the legal system
    • Importance
      • Absence of Judicial independence will threaten judicial neutrality
        • As ff judges are subjected to external control, their impartiality will be compromised
      • Allows judges to do to right thing and apply justice properly without fear of the consequences
      • Uphold the rule of law
      • To allow democracy to exist and flourish
        • Montesquieu - "There is no liberty, if the judiciary power be not separated from the legislative ans executive"

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