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Workshop 6.3 - Independence of the judiciary - Coggle Diagram
Workshop 6.3 - Independence of the judiciary
A separate judiciary
There is a strict separation between the other branches and the judiciary.
The judiciary is substantially insulated from political influence.
An independent judiciary
In order for the judiciary to be insulated from political influence, it must be independent.
Section 3 of the CRA 2005 puts this constitutional principle on a statutory footing.
"Ministers must uphold the continued independence of the judiciary"
"Ministers of the Crown must not seek to influence particular judicial decisions through any special access to the judiciary"
Constitutional Reform Act 2005
House of Lords Appellate Committee and the Supreme Court
For centuries, the Appellate Committee in the House of Lords was the highest court.
The highest appeal committee was institutionally part of the legislature.
Law lords were allowed to contribute to debates in the House of Lords and to vote on legislation which they may ultimately be responsible for interpreting or applying.
The judicial function of this part of Parliament ended in 2009 following the CRA and was replaced by the Supreme Court which sits as a separate institution from Parliament.
Judicial appointments
Before the CRA, appointments of judges were made by the Lord Chancellor, a member of the executive and legislature.
S 6 of the CRA provided for the setting-up of an independent Judicial Appointments Commission with the intention of improving the quality of the administration of justice and enhance public confidence in the judiciary.
S 63 of the CRA ensures that judicial appointments are solely to be based on merit and good character.
Judicial pay and tenure
Judicial security of tenure has been enjoyed since the Act of Settlement 1701.
This was vitally important in protecting judges from politically motivated dismissal by the monarchy/executive.
The principle has been re-enacted in s 11 of the Senior Courts Act 1981 for judges in the Crown Court, High Court ad Court of Appeal. S 33 of the CRA re-enacts this principle for justices of the Supreme Court.
Both of these Acts state that judges hold office during good behaviour and can only be dismissed by the monarch following an address presented by both Houses of Parliament.
Judges are paid a salary which is determined by an independent pay review body.
Judicial officers of other courts, including magistrates, coroners, and tribunal members enjoy less security, and their independence is protected by convention rather than law.
Political independence of judges
Full-time judges are disqualified from sitting in the House of Commons under the House of Commons Disqualification Act 1975.
Courts lack jurisdiction to inquire into proceedings in Parliament. This parliamentary privilege is enshrined in Article 9 of the Bill of Rights 1689.
Members of the Cabinet and MPs should not criticise the character or motivation of judges - not always respected.
Judicial immunity from civil actions
Judges are immune from legal proceedings for actions that would otherwise be tortious, as long as the action is done in a judicial capacity in a court of justice.
Magistrates may be liable for acts outside their jurisiction
Sirros v Moore [1975] QB 118: A Circuit Judge was entitled immunity from liability in a civil action for damages because the act was done by him acting in his capacity as a judge, in good faith.
Open justice
Trials should be conducted in public and only hear in camera if a hearing in an open court would defeat the purpose of justice.
The principle of open justice enables public scrutiny to hold judges to account for their decisions and enables the public to understand how the justice system works and why decisions are taken.
Hearings in private
Some hearings are allowed to be conducted in private.
Civil Procedure Rule 39.2 provides a list of cases:
If publicity would defeat the object of a hearing (e.g an application for a freexing injunction or a search order).
If it involves matters relating to national security.
If it involves confidential information.
If a private hearing is necessary to protect the interests of any child.