Unit 1b Ch8/2 The independence of the judiciary

In order to ensure the right to a fair and public hearing, 3 basic principles are needed.

1- Security of tenure: Once appointed, a judge can't be dismissed except for misconduct. Under the Judicial Discipline (Prescribed Procedures) Regulations 2006, there is provision for the Lord Chancellor or the Lord Chief Justice, upon receipt of info. from any source which suggests that disciplinary proceedings might be justified, to refer that information to the Office for Judicial Complaints to be dealt with in accordance with their rules. This means that there does not have to be a formal complaint made by a member of the public, merely that information emerges that merits investigation. Judges can be confident that their salaries will not be compromised by either Parliament or the Government because they are paid from the Consolidated Fund. 2- Immunity from suit: A judge can't be sued or prosecuted for his performance in court. This principle is found both in the common law and in the decisions of the European Court of Human Rights. The fact that judges can't be sued for their court performance, and so have protection from negligence claims as a matter of policy, is central to the concept of an independent judiciary and therefore is the justification for the existence of this protection of a judge. This gives a judge a great peace of mind. If a judge makes an error, the correct procedure is to use the appeal system. 3- An independent judiciary: That is, independent of the State and therefore independent of influence on its decisions. The idea of an independent judiciary stems from the doctrine of the separation of the 3 powers in a State: 1- THE EXECUTIVE is the Government and is responsible for formulating policy. 2- THE LEGISLATURE is the Houses of Parliament and is responsible for making law. (In theory the Government ministers should not also be making law, hence the second House of Lords) 3- THE JUDICIARY should ensure the law passed by Parliament is applied. According to this theory, they should not be declaring whether the law is valid or not. Since 2009 the judiciary has been completely separated from the legislature. This is due to the establishment of the Supreme Court, (as a result of the Constitutional Reform Act 2005), and Justices of that court do not sit in the parliamentary House of Lords. Judges are required to observe the ECA 1972 and give precedence to EU law over UK law where there is a conflict, similarly the HRA 1998 gives judges the power to declare that UK legislation does not comply with the European Convention of Human Rights. The effect is to strengthen the power of the judiciary as judges can potentially treat parliamentary-made law as ineffective. EG Fisher v Bell 1960 flick knives in shop window, invitation to treat.

The Universal Declaration of Human Rights

Enshrines the principles of equality before the law, of the presumption of innocence, and of the right to a fair and public hearing by a competent, independent and impartial tribunal established by law.

Evaluation of judicial independence

The current system of appointing judges is satisfactory, in that the judges are largely independent and are prepared to make decisions that are not popular with the Government of the day. The fact that the members of the judiciary remain in office when there is a change of Government supports this view, as do the changes to the process of appointing judges brought about by the Constitutional Reform Act 2005. Further, there is training and discipline carried out by the judiciary itself. Whilst there are always criticisms of the judiciary, the systems in place ensure that, for the most part, the judiciary is effective and efficient, and that the lapses that occur can be corrected within the system.

The separation of State powers and the independence of the judiciary

The principle of judicial independence is interlinked with the doctrine of separation of powers. Essential in order to ensure that the law is enforced impartially and consistently, no matter who is in power without influence from any other source. Judicial independence can be seen in the decisions the judges make, their security of tenure and their immunity from suit.