The judiciary


Judicial independence

Increasing judicial power? Human Rights Act 1998 s3 and 4, Membership of the European Union eg Factortame, Increasing scope and intensity of judicial review, and changing judicial role. 

Increased tensions? Have to be independent of government, may see a move to a legal constitution and politicians can seek to undermine judges. 

Independence- i) individual- own judges need to be independent, decent salary, security of tenure, hard to be removed, need to be well qualified. Need to be free from outside pressure. 

ii) institutional- who funds the courts, who chooses who sits, need to prevent Parliamentary pressure, should be removed from improper influence. 

Judicial independence- traditionally understood- emphasis on the individual limb, want more individual independence rather than institutional, as they used to sit in the HoL. There is no constitutional 'guarentee' of judicial independence, the political system supplied protections for judicial independence. Role of the Lord Chancellor- historic role made in the 11thC, member of government, a cabinet minister, in charge of legal aid and  running courts. Appointed the PM and can be replaced by him. Presiding officer of upper chamber of Parliament. Judicial responsibilities- head judge,  sat in Law Lords, and made all judicial appointments. 

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recognising importance of ji

Liyange v R 1967, Duport Steel v Sirs 1980, R v SoS for the Home Dep exp Fire Brigades Union 1995 and M v Home Office 1992. 

A6 of the ECHR- 'in the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. 

Constitutional Reform Act 2005 (had two years of debate) - functions of Lord Chancellor (judges werent consulted that it would be changed), creation of Supreme Court and Judicial appointments. Cabinet reshuffle, abolish Lord Chancellor. Modified substantially, was a 1000 year old job so no one knew full extent of powers, judiciary wanted it retained. 

Reform of the office of Lord Chancellor- no longer head of the judiciary, enhanced role for Lord Cheif Justice, a much reduced discretion in political appointments, S3 'guarentee' of judicial independence, and what the new lord chancellors for? This was needed as ministers started to criticise judges, started to change to mainly government business and ministerial duty. He became less likely to stand up to the PM. He wasnt an effective head of judiciary replaced by Lord Cheif Justice. Created the office of the speaker of the HoL. 

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Lord chief justice

Lord Cheif Justice has disciplinary powers and training and welfare. He makes representations to Parliament. Letters to P to stand up to gov. 

S3 guarentee of 'continued' judicial independence- S3(1)- 'The Lord Chancellor, other Ministers of the Crown, and all with responsibility for matters relating to the judiciary or otherwise to the administration of justice must uphold the continued independence of the judiicary.'

Effect? duty of LC to give judiciary all the support necessary. LC no longer has to be a lawyer. May not appreciate the need for judicial independence. Can be from either house. Jack Straw and Ken Clarke. Is the guarentee empty? 

UK Supreme Court- new supreme court, it is no longer part of parliament. Got rid of appellate committee of the HoL. Law Lords used to participate in debates eg Hunting Act which wasnt separation of powers. It's jurisidiction is the same as the Law Lords. Privy Councils jurisdiction on devolution as well. All Law Lords were turned into SC justices. Might make court more powerful. 

Has the jurisdiction of Appellate Committee of the HoL and the Devolution Jurisdiction of the Judicial Committee of the Privy Council. 

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Judicial appointments committee

Used to be informal with discretion from Lord Chancellor. Independent and manages, and identified well qualified people to be judges. Tests, interviews and maybe role play- regulated by the reform act. Doesnt make appointments makes recommendations- 600-700 recommendations a year.

Must do appointment on merits, should try for diversity. Women are only 40% of recs and minorities 10%. 1 woman out of 12 for SC. 0% ethnic in SC, 3% in HC and 7% further down. 18% women in appeals and 19 women in HC.

Made up of 15 members- 7 judges, 6 lay people and 2 lawyers. Lay people are not always an effective safeguard. The Chair must be a lay person. Want to avoid judges appointing judges. Shift towards a legal constitution. 

Lord Chancellor had final say. Accept, reject or request reconsideration. In 2014 4000 recs made and he accepted all but 5. JAC pretty much appoints. 

Who are the guardians of judicial independence? Parliament, the political system, Lord Chancellor, Judicial Appointments Committee, Lord Cheif Justice and the Judges. 

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legal or political?

Judicial independence in Britians changing consitution:

Are recent reforms evidence of a shift towards something akin to a legal constitution? or are the reforms premised on a model of a 'political' constitution? or both? 

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