Judicial in-dependency.

The role of judiciary is the key role in English rule and common law in both theory and
practice, his duty is to ensure fairness and uphold the rule of law with integrity , he
resolves disputes and determine guilt, punish offenders. the role of independence is
mistaken as enjoyed privilege but judges should be seen free from the executive and
legislature and to act in conduct and this role is a dire importance to have the people
rights realized.

a judge should be based on institutional independence and they should not submit their
decisions of a case to their views. before judges were bound by durante bene placito but
with the enactment of the Act Of Settlement [1701] had become free.

The Constitutional Reform Act [CRA 2005] introduced:

profound changes to the judiciary, to the position of the final court of appeal and to the
appointment of judges.

The CRA introduced the Judicial Appointments Commission [JAC] as selector and Lord
Chief Justice as head of the judiciary. prior to this the lord chancellor was in hold of
these two positions. the lord chancellor has a seat in all three arms of state: leadership of
the judiciary the legislature and the executive, his position was questioned with the
enactment of the HRA 1998 which provided a fair trial and that a case must be decided
by an independent and impartial tribunal. but if the lord chancellor held these positions
the requirements for independence might not be fulfilled.

The reason why is considered in the case of Mcgonnel v UK [2000}

The court held that the deciding factor of this case is not a subjective test I.e that the
bailiff himself believes to be impartial but it is an objective test I.e he haves to be seen to
be impartial and not be influenced by his involvement. a lord chancellor held a position
in the executive and sometimes its actions was brought for trial, the courts held that an
on-looker should see the case as been impartial and that they ensure the publics
confidence in them.

Lord falconer reflected and questioned that the CRA should have included a more
explicit requirement for the lord chancellor to have a deep understanding of the rule of
law and commitment to its protection he also notes of concern to the changes of the role
of the lord chancellor.
Lord Thomas the lord chief justice recently said that since the constitutional changes in
the CRA 2005 there is a need for the judiciary to work constructively with the executive
on issues relating to justice policy.

The measures supporting the independence of the judiciary are protection against
dismissal ,immunity from suit, and reasonably generous pay and conditions of service.

The CRA 2005 codified the judicial independence which was introduced by The Act Of
Settlement 1701: Section 3(1) provides that:
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 judiciary.
Section 3(5) specifically prohibits interference with judicial decisions by the executive.
It provides that:
The lord chancellor and other ministers of the crown must not intend to influence a
judges decision by access to the judiciary and responsibility placed on the lord
chancellor is that he must defend judicial Independence and swear an oath on it.

Security of tenure provides that a judge would be dismissed by incapacity and

misbehaviour , drunk driving offences are also counted as misbehaviour but not always
will it lead to dismissal. the JAC guidelines provide that more than six points of
misbehaviour will fail the selection of judiciary and In 2000 new terms of services were
announced, the grounds of part time judiciary contract non-renewals are : misbehaviour ,
incapacity repeated failure of sitting requirement failure of observing the standards
expected or the need to reduce numbers.

few cases provided on misbehaviour are: A circuit judge was dismissed for smuggling
goods into England on his yacht.
A recent shocking case is of Ms. Briscoe who perverted a police investigation she was
found guild and punished with 16 months prison. The judicial conduct office has carried
out a report investigation allowing her to make representations as to why she should not
be removed until the conclusion she will remain suspended.

immunity from suit provides for a judge to give decisions to a case without fear and
complete independence, even if a judge was in gross error he can not be sued, his
decisions are protected by an absolute privilege and only will be held liable in cases of
bribery or perverting the course. In begraj v secretary of state for justice it was held if a
judge would benefit from immunity the state could not be liable by virtue of s.9.(3).

appropriate remuneration is also seen as importance to protect independence, salary

protection exists in two forms :
(a) salaries which encompasses pensions, cannot be decreased for judicial office holders;
and (b) in respect of senior judicial office-holders salary is paid out of a consolidated
fund rather than being paid by the executive. in principle if parliament wishes to stop
salaries nothing can stop them. Article 35.5 provided that the remuneration of a judge
should not be reduced during his continuance in office . the Canadian supreme court held
that it would not be unconstitutional to reduce the salaries of judges and would not
breach the principle or rule of law if it was pursued for a legitimate purpose. See R v
Valente [1985]a judge not only has to be impartial but also be seen to be , if a judges
fairness is being doubted then he should not precede over such a case, a judge should
precede with impartiality and without bias failure to do so will lead to diminishing public
confidence and weakness in the justice system. a case that is illustrated is the Pinochet
case, the judge was later found to have an interest in this case and he did not recuse
himself from it, thus the ruling he has given was quashed and the case was given over to
another judge to rule over the decision was the same but the reasoning's different. it is a
long established common rule (nemo judex in causa sua) a judge should not precede a
case in which he has an interest. two important factors were taken from this case the first
is that not only a judge should be impartial but also be seen to be and the second that
judges are difficult to remove even if they have committed a serious error . guidance to
when a judge should recuse himself is when he notices that he has any involvement or if
any bias will appear he should inform to the parties before the hearing in R v Gough it
was held that if there was any possibility of bias its not on the relevant judge to assess it
but for the reviewing court if the judges decision was influenced by some irrelevant
consideration but if a judge was shown to have an interest in a case there would be
automatic disqualification. following the ECTHR and porter v magill the test for
potential bias was modified and it was held that an objective test should be considered.

Judicial Selection and Diversity

The England and Wales justice system selects candidates for judicial office from among
experienced legal practitioners who have demonstrated excellent legal skill and high
standards of integrity in practice. Between civil law and common law there is a huge
difference , in civil law a judge will be appointed based on his performance In
examination rather than in practice and in common law he will be elected via practice.

The process of judiical is not familiar to the public but curiosty of who they are the
decisions they take and their conduct in and out of court, although the judiciary are one
arm of the state the public and media are aware that they are not elected thus they suffer
from a democratic deficit.

Brian tamanaha has argued, that whenever rules of law have authority and judges have
the final say over the interpretation and application of the law, judges will determine the
implications of those rules of law. For that reason a judge should be elected carefully and
three qualities should be considered: wisdom judgment and character.

Before the CRA there was a lack of diversity in the judicial appointments and it was
stated that there should be a change and the new JAC system brought forth that when
appointing a judge one should look to their gender, race and social background and also
they should be qualified. Ewing argues that a judge should not only maintain their
quality but should also be a representative to those whom they exercise their power.

Prior to The Courts And Legal Services Act (CLSA 1990) Judicial Appointment was
limited to the bar, and the eligibility for judicial appointment was limited to barristers
with years of experience.

Now qualifications are based under s.119 of the act to break the bars hold and give more
applications a chance, it provides for anyone to appear to the courts and address
including the right to examine a witness.

Despite the changes the rulings that a judge needs to have experience as an advoacate
still prevails the view is that good judges need to show a wide range of skills and
qualities.

The Tribunals, Courts and Enforcement Act (TCE Act) 2007 widened the eligibility
further and extended the range of people it applies to, eligibility for judicial office is
based on possession of a relevant legal qualification for the requisite period, and gaining
legal experience while holding that qualification.

Prior to the JAC the lord chancellor was In charge of judicial appointments, there was
much criticism for how he carried it out and the lack of transparency, those wishing to
acquire the position could not hand in their application nor was a formal interview held,
the lord chancellor would hold private meetings with the serving judiciary and appoint
someone he feels possess the skills. In 192 justice posted bold statements that said the
courts required: that the qualities and skills required of judges should be established and
articulated, those from whom appointments are made should be broadened, a reduction
in the mandatory retirement age,restructuring judicial work to allow the appointment of
permanent part-time appointments, the option of embarking on a judicial career at an
early stage, the introduction of term appointments at all levels for those who would
prefer them.

Sir Leonard peach conducted an independent report in 1999 it was a commission for
judicial appointments and responsibility of monitoring it and also acting as an
ombudsmen for complaints, however it had no role in actually making appointments.The
commission was established in 2001 as suggested by the peach report , Sir Collin along
with seven other commissioners was the first to be selected however they identified
serious and chronic problems in the system and thus the change of the CRA 2005
brought forth the JCA to make judicial appointments.

Prior to 2006 there was criticism of the judges gender social background ethnic and
cultural diversity, the eligible pool of practising barristers and solicitors.

After the CRA 2005 many did not welcome the changes because they believed their
input would be lessened and if some of the commissions would be well placed to select
the best candidates.

Lord falconer issued a consultation paper in 2003 stating in it the reason that the
government brought up the judicial appointments commission , he mentions the reasons
are two: the first is to separate the existing powers between the executive and judiciary
and the second is to increase the diversity.

He also mentions that a government minister should not be allowed to select judges
because at times they are held for their actions and the judiciary need to show their
impartiality and prove to the public confidence.

The JAC was to make the system more independent and transparent however the
commissions are only allowed to make recommendations after the process is complete it
still qualifies the Gov. Minister of VETO.

The Crime and Courts Act [2013] introduced a change to the final responsibility for
appointment decisions, appointments to the High Court and above continue to be made
by the Minister/ Lord Chancellor, appointments below the level of the High Court are
now made directly by the Lord Chief Justice rather than the Lord Chancellor,
appointments to tribunals are now made by the Senior President of Tribunals.

The JAC has three statutory obligations:

select solely onmerit, appoint only people of good character, and have regard to the need
to encourage diversity in the range of persons available for selection for appointments.
The CRA 2005 responsibility is to widen the eligible pool of candidates and avoid giving
them statutory responsibility to increase the diversity.

The concept of merit is based on ones skill and qualities there are five main criteria for
this to take effect, intellectual capacity, personal qualities, an ability to understand and
deal fairly, authority and communication skills, leadership and management skills.

The selection process entails of : app forms, references, shortlisting, interviews,

roleplays, and statutory consultation & character checks. After this applications for high
court will be sent to the lord chancellor and for courts lower to the Lord Chief Justice
and for tribunals to the Senior President.

Its key objective is to make the JAC system more diverse and more open to ethnic
candidates.

The diversity issue is that in the present day court there are many judges that are mostly
white males from a good background and graduators of campbridge or oxford
universities.

Here are three main arguments on why diversity matters: 1st it is a matter of equal
opportunities, that is that all are qualified should be and should not be identified by their
gender race origin class disability etc. Failure to appoint such candidates brings up
arguments that indirect discrimination is influencing appointment. Human equality
implies that everywhere one can find a person with talents and its nor related to one
group alone, and the current under-representation suggests that other than factors such as
pure talent is influencing the appointments in the judiciary.ruling class, the judiciary
should reflect the whole community, not just a small section of it.

2nd the lack of diversity weakens the legitimacy of the judiciary, in society it is
unacceptable that a homogeneous group reflects neither the diversity of society. The
judiciary do perform a law making function but they lack the legitimacy because they are
not representative, the failure of appointing well qualified diverse candidates represents
exclusion from taking part in power. Paterson and Paterson 2012 argue: diversity is a
fundamental principle , a judiciary that composition reflects the lack of fairness and runs
a real risk of weakening its authority because it claims to be able to deliver fairness.
Lady hale argues that in a democratic society nor ruled by a monarch the representative
should reflect the whole society and not just a portion.

3rd it is said that if judges are elected from different classes their life experiences will
bring varying perspectives to bear on critical legal issues this is viewed as important for
the scope of judicial discretion and where considerations influence the judicial decisions
in public interest. It is thought that having different experiences and values will lead to a
good decision in a case. In 2009 president Obama said judges should resort to their
deepest values and depth of empathy in deciding difficult cases , the ingredient for such
cases is within the judges heart. Sir Terence said he deems It important for the judiciary
to include people of different backgrounds because when judges disagree about hard
cases which are policy laden etc they do so because of their personal experience which
influence their decision. Benjamin Cardozo wrote : Everyone of us has an underlying
philosophy of life , in each of us is a stream of tendency whatever u choose to call it , it
leads us to our thoughts and actions.
The JAC strategy to increase diversity has three elements 1.fair and non-discriminatory
processes 2.advertising and outreach 3.working with others to break down barriers.

The increase in diversity since the JAC has been relatatively slow, frustrated the Lord
Chancellor introduced an adivsory panel on judicial deiversity in 2009. in 2011 the house
of lord enquired more further on judicial appointments and included: Is the judicial
appointments system fair, independent, transparent and open? Does the process secure an
independent judiciary? Are candidates appointed on merit? Is the judiciary sufficiently
diverse?

In 2012 a number of recommendations was made which said that a judicial diversity was
important and that seniory judiciary shouldnt just sit on their chairs to select their
successor and the power to appoint judges for lower courts to the lord chief justice.

The equal merit provision [tipping point provision] holds that if a judge holds two or
more persons to be of equal merit then the procedure will be used when there is clear
under representation on the basis of race or gender, the crime and courts act 2013
amended the CRA by enforcing that a candidate may be elected for the purpose of
increasing judicial diversity.

Lord Sumption argues that there is a lack of qualified women and minorities thats why
the lack of diversity and he mentions that it would take a while for the English courts to
achieve diverse , he views the JAC as successful but expectations to achieve quick
change was fictional. He suggested the use of the trickle up effect which is to have
patience and wait for women and minorities to be qualified and mentions that the debate
the courts are discriminated against women false.

In 2013 Lady hale challenged lord Sumptions views saying that we should revive the
argument for special provision and when an appointment maker is taking a decision we
should let him take into account racial and gender balance. She would be in favor of this
due to the lack of diversity.

Another reason for lack of diversity is that underrepresented groups are not attracted to
judiciary that is why they selfexclude or lack of confidence to apply, research by Genn
shows that women feel unwelcome by the male environment in the judiciary and that
some think they would not enjoy life on the bench or the failure of having a temperament
of a judge.

Another reason is that judges choose according to their image and this fact is known as
self replication and is common, selectors are anxious about who they choose and
sometimes they may deem important some types of experience and skills and undervalue
the potential of others from nontraditional background or experience.

The maximalist concept of merit is that there is only one person suitable for the post and
this decision is very hard to make, Lord McNally expressed that the merit criterion are
defined by white males and this is the danger of it, the focus of one construction of
perceived individual merit must move towards a process which the needs of the judiciary
as a collective institution are central.In 2014 sadiq khan commissioned two QCs to
report on how to increase judicial diversity the report says: a quota system is necessary
to ensure the fair and proportionate representation of women and other minorities in the
judiciary . in may 2015 the reelection of the conservative gov makes it unsure if this will
be put to use.

The increasing legalisation of the social world has been referred to as a shift from
democracy to juristocracy In the UK it is argued that this has led to an alteration in the
power balance within the constitution.Professor Vemon says that the increase is due to
several factors which are: public discontent with democratic process, the believe in
judicial review, greater emphasis on human rights, citizens have an idea of their right and
go to the courts for it, the devolution of the UK.

Bogdanor points out that since the HRA act judges are now more willing to step in and
not leave the changes to parliament , judges check our rights, judges check the executive,
judges determine the power between parliament and Europeon union, thus the judiciary
is becoming more important to our constitution. Modern developments have also
increased the reach of the judiciary in far areas such an area is cited the case of RE A
(children) 2000 LJ Ward: In the past decade an increasing number of cases have come
before the courts where the decision whether or not to permit or to refuse medical
treatment can be a matter of life and death for the patient. I have been involved in a
number of them. They are always anxious decisions to make but they are invariably
eventually made with the conviction that there is only one right answer and that the court
has given it.

In 1998 the labor gov. Implemented the HRA 1998 it provided that all courts and
tribunals must when relevant take the account of the ECTHR. Legislation in the UK
must be interpreted consistently with the convention right, if it is not possible in the case
of primary legislation the higher courts may declare the legislative provision is
incompatible with the convention, except in exclusion by mandatory provision in
primary legislation all public authorities besides parliament are to exercise under the
convention rights, in previous chapters we have seen the impact of the HRA 1998 to be
of considerable debate, the HRA has heightened tension between the executive,
parliament and the judiciary , and the most important is in relation to terrorism and
prisoners voting right.

Terrorism.

In the wake of the 11 September 2001 attacks on the USA and international concern
about terrorism the UK Government passed the Anti-Terrorism, Crime and Security Act
2001 (ACSA). The Act gave the Government power to detain without charge non-UK
citizens suspected of terrorist activities, but who could not be repatriated to their own
countries because of fear for their wellbeing. The House of Lords held that the detentions
were unlawful. It accepted that there was a national emergency justifying derogation but
that the response to the perceived threat was disproportionate and therefore incompatible
with the ECHR. The Court held that s.23 of the ACSA was incompatible with Article 5
and Article 14 of the ECHR and quashed Derogation Order 2001 which was secondary
legislation. This was a significant and controversial judgment by the House of Lords
against the ACSA.

Lord Bingham said:

It is of course true that the judges in this country are not elected and are not answerable
to Parliament ... But the function of independent judges charged to interpret and apply
the law is universally recognised as a cardinal feature of the modern democratic state, a
cornerstone of the rule of law itself.

The decision in this case was criticised in the popular press. While the judiciary were
seeking to apply the HRA 1998 and fundamental rule of law principles, critics thought
that the judiciary were thwarting a legitimate Government response to the threat of
terrorism and overriding legislation that had been implemented through the democratic
process.

As a result of this case [A and X v Secretary of State for the Home Department [2004] ]
the Government repealed the ACSA and replaced it with the Prevention of Terrorism Act
2005.

The case of Al-Rawi dealt with the fundamental right to a fair trial, The question in this
case arose in relation to claims for compensation for mistreatment by suspected terrorists
who had been detained by foreign authorities in various places including Guantanamo
Bay. The specific question for the Supreme Court was whether a court has the power to
order a closed material procedure (CMP) for the whole or part of the trial of a civil
claim for damages. Previously courts could grant a public interest immunity (PII)
certificate, allowing one litigant to refrain from disclosing evidence to the others where
this would be deemed damaging to the public interest an exception to the normal rule
that all parties are obliged to disclose any relevant evidence. In issuing such an order, the
court must balance the public interest and the open administration of justice with security
concerns about disclosure of sensitive materials.

Lord Dyson said:

There are certain features of a common law trial which are fundamental to our system of
justice (both criminal and civil) trials should be conducted and judgments given in
public ... The open justice principle is not a mere procedural rule. It is a fundamental
common law principle.

Barrister Michael Fordham said that: Secret trials undermine the principles of open
justice and natural justice on which the rule of law is built. the judge granted a
declaration that it could be lawful and proper for a court to order a CMP in a civil claim
for damages. The Court of Appeal disagreed, denying that a court had such a power. The
Supreme Court, by a majority, dismissed the appeal, holding that there is no power at
common law for a court to use a CMP. this case demonstrates the power of parliament
that when the superior courts make a decision parliament can over rule it.

Another ruling that the government doesnt want to change is the ban on prisoners to
vote section 3(1) of the representation of people act [1983] provides that a convicted
person during his time of his sentence is legally incapable of voting.

In a series of cases the blanket ban on voting was held and asked if it was compatible
with A3p1 and following with chester too lord Mance held that the UKSC is required to
take into account decisions of the ECtHR, not necessarily to follow them. This enables
the national courts to engage in a constructive dialogue with the ECtHR. But Lord
Mance said that prohibition on prisoner voting in the UK had now been considered by
the Grand Chamber of the ECtHR twice and, on each occasion, found to be incompatible
with A3P1. In these circumstances, it would have to involve some truly fundamental
principle of law or the most egregious oversight or misunderstanding before it could be
appropriate for the UKSC to refuse to follow Grand Chamber decisions of the ECtHR.
The ban on prisoner voting is not a fundamental principle of law in the UK, and the
circumstances do not justify a departure from the ECtHRs case law.

Lord Mance held that the incompatibility of the prohibition on prisoner voting in the UK
with the Convention is already the subject of a declaration of incompatibility and is
currently under review by Parliament, Lady Hale pointed out the fact that the judiciary
are appointed, Democracy is also about safeguarding the rights of minorities, including
unpopular minorities.

In November 2012 the Government brought forward the Voting Eligibility (Prisoners)
Draft Bill which is designed to comply with the ECtHRs judgments by giving some
prisoners voting rights.

The Convicted Prisoners Voting Bill 201516 is designed to exclude prisoners serving a
custodial sentence from voting at a parliamentary or local government stage. It is
currently making its way through Parliament.

In moohan v lord advocate held that the statutory disenfranchisement which made
prisoners ineligible to vote was lawful. Section (v) of the judgment the common law
recognizes a right of universal and equal suffrage from which any derogation must be
provided for by law and must be proportionate.

Lord Mance pointed out the effect of the ECHR case law , he said it has led to the
removal of sentencing discretion from the executive, the lifting on the ban of
homosexuals in the armed forces, the ending of detention without trial, prevention of
those who would if deported face real risk, etc. Sometimes the effect reached may pinch
however it is unforeseeable that a court established by European states to give effect
reach them.