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Judiciary - Coggle Diagram
Judiciary
Independence
Independance from the legislature - full time judges are not allowed to be members of the HoC, and in 2009 the CRA created the SC to replace the HoL
Independence from the executive - the gov cannot dismiss judges, and they are not appointed by the JAC which keeps them independant
Independence from the case - they must be completely unbiased and can never try a case they have an interest in Pinochet case 1998
Immunity from suit - judges cannot be sued or prosecuted when acting in a judicial capacity unless they knew that they did not have jurisdiction to do what they did
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Change is taking place but it is slow. One reason is that many women take career breaks or are part-time. One proposal is that more positions should be available on a part-time basis. Another proposal is to have a Judicial Training College which runs courses for those wishing to be appointed as a judge. This might ensure that those lacking experience in one aspect of the job (but otherwise suitable), could receive targeted training.
Security of tenure - superior judges cannot be dismissed by the gov, this protects them from political whims
Why does it matter?
Judicial independence refers to both the independence of judges from external influences such as political interference and also to the impartiality of judges (referred to as decisional independence).
Judicial independence is a key constitutional principle and it is linked to the concept of the separation of powers and the rule of law. According to 18th century political theorist Montesquieu, the three arms of the State should each perform separate functions in relation to law.
Costs of training in law - see your notes on training to be a solicitor/barrister, the increased tuition fees and further training costs, coupled with the low starting salary once you start a training contract (solicitors) and pupillage (barristers) and the stiff competition which means you have no guarantee that you will be able to enter the legal profession, has a direct impact on diversity in the judiciary as judes are drawn from the ranks of solicitors and barristers.
This “separation of powers” is vital to liberty, the judges must be independent from the executive (Government) and Parliament.
Baroness Neuberger makes a similar point: “in a democratic society the judiciary should reflect the diversity of society and the legal profession as a whole. Judges drawn from a wide range of backgrounds and life experiences will bring a range of varying perspectives to bear on critical legal issues. A judiciary which is visibly more reflective of society will enhance public confidence.”
The Constitutional Reform Act 2005 aimed to bring about a clearer separation of powers in the UK by removing judges from the House of Lords / Parliament and creating a new Supreme Court. The Act also modernised the role of the Lord Chancellor, a political appointee, so that he was no longer personally responsible for selecting the judiciary, the new Act created a more transparent system of appointing judges based on merit.
It could be argued that the lack of diversity undermines public confidence in the legal system. According to Lady Hale, (who at one stage was the only woman judge in the Supreme Court) the composition of judges might matter in terms of how judges see an issue and could give a different perspective on a case. She also sees it as important to democracy - “I do not think I am alone in thinking that diversity of many kinds on the bench is important for a great many reasons, but most of all because in a democracy which values everyone equally…it is important that their rights and responsibilities should be decided by a judiciary which is more reflective of the society as a whole, and not just a very small section of it." (Lady Hale)
There are a number of ways in which our legal system seeks to maintain and protect the independence of the judiciary:
Payment of Salaries (judges are paid from the Consolidated Fund – their salaries are set by an independent body and not voted upon by Parliament. The Government cannot reduce their salaries.)
Immunity from Legal Actions Judges cannot be sued or prosecuted over anything they do in connection with their role as a judge (Sirros v Moore 1975)
Appointment system – this has been one of the most criticised aspects of the legal system and attracted a great deal of comment. The CRA 2005 established a new independent body responsible for selecting most judges.
Security of Tenure (it is very difficult to remove judges from Office. Senior Judges can only be removed from office by a vote in both Houses of Parliament and lower ranks only with joint agreement of the Lord Chancellor and Lord Chief Justice (on grounds of incapacity or misbehaviour).
The creation of the Supreme Court under the Constitutional Reform Act 2005 removes judges from Parliament. This has ensured a clearer separation between the legislature and judiciary. In addition, the role of the Lord Chancellor (a government minister) has been reformed – he is no longer the Head of the Judiciary and is no longer able to sit as a judge. The role of the Lord Chancellor in judicial appointments is now much more limited.
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Conflicts of interest - judges are not permitted to hear cases in which they have any connection or interest (direct or indirect) as seen in the Pinochet case (1998). This links to the right to a fair trial article 6 ECHR.
The fact that judges are independent and impartial is one of the reasons why they are often appointed to head Public Inquiries e.g. the Taylor Inquiry into the Hillsborough Stadium Disaster (1989); Bloody Sunday Inquiry (the Saville Inquiry) in Northern Ireland (2010); the Leveson Inquiry (2011-2012) into the culture, practices and ethics of the British press following the News International phone hacking scandal.
Judges have shown a willingness to rule against the Government e.g. Belmarsh case 2004 (A v. Sec of State for Home Office); and the Brexit case 2017 (Miller v. Sec of State for Exiting the EU)
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Judicial Qualities
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Personal qualities including: integrity, independence, sound judgement and objectiveness
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If you have a criminal conviction, will not lead to an immediate rejection, unlikely the candidate will be elected
Graham Stuart Jones v JAC 2014 - had 7 penalty points on his license, described as having good character but six or more points likely to be rejected
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