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Discuss the advantages and disadvantages of the selection and
appointment of the judiciary.
A major advantage of the new appointment system for the judiciary is that it is now the
Judicial Appointments Commission (JAC) who appoint judges. It is no longer judges
appointing judges as the JAC is an independent and more balanced group of judges, lay
people and lawyers and means less involvement by politicians, i.e. the Lord Chancellor and
PM. The JAC appoint on the basis of merit and good character and not on secret soundings
to prevent discrimination. All of this should also make the process more transparent and fair.
Part 2 Tribunal, Courts & Enforcement Act 2007 has changed eligibility which now requires a
relevant qualification and Post Legal Qualification Experience. It is no longer the no. of years
rights of audience but now includes research, teaching, etc. Also, the relevant qualification
may include Legal Executives. All of these new measures are aimed to broaden the diversity
of the bench and prevent discrimination based on an old system of networking. It should
enable more women, teachers, lecturers, solicitors, etc to become eligible.
However, the new changes are likely to take some time to alter the composition of the bench
and it may still remain mainly white, upper class elderly men. There is still some government
involvement as the Lord Chancellor still plays a part in appointment. There is even more
involvement with Lords of Appeal in Ordinary as the PM is involved in the appointment
Consider why it is difficult to dismiss a judge, or,
Consider why it needs to be difficult to dismiss a judge
It needs to be difficult to dismiss a judge so they remain free from pressure from the executive
and the legislature to make decisions.
It is very important the executive/legislature cannot easily dismiss a judge to maintain
independence so they do not feel forced to make decisions. Under the Act of Settlement
1700 judges have security of tenure. Superior judges can only be removed for physical/mental
incapacity serious misconduct vote by both Houses of Parliament. However, inferior judges
do not have quite the same security (Courts Act 1971).
It is important that a judge is free to make decisions free from pressure of the executive,
without fearing dismissal for a decision that goes against this power. This can be seen in the
antigovernment decision of DPP v Hutchinson.
There have also been Judicial Review hearings where ministers have been ruled against, e.g.
R v Home Sec, ex parte Fire Brigades Union. The judiciary have also ruled against Acts
which were incompatible with the Human Rights Act 1998, e.g. A & others v Sec State for
Home Dept, R v Offen, R v A.
It is important the judiciary have the freedom to do this without fear of dismissal to ensure the
correct decision is reached.
Discuss the importance of judicial independence.
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Montesquieu's theory of the separation of powers states the three powers of the state must
be kept separate to safeguard liberty. The judiciary must be free to make decisions without
pressure. This also secures public confidence in the legal system.
The judiciary are independent of the legislature as they simply apply the law and should not be
involved in making it, yet Law Lords sit in Parliament. Convention states they should not get
involved in debates, yet this has not been the case recently.…read more