1.7 Legal Personnel Judiciary

Question 1

What is the fundamental principle of the ‘Rule of Law’?

And what is the role of judges in controlling this principle?

Answer 1

The independence of the judiciary is a fundamental principle of the rule of law.

Judges have a key role in controlling the exercise of power by the state through judicial review and through the Human Rights Act 1998, with the power to issue section 4 declarations of incompatibility – A and X and others v Secretary of State for the Home Department (2004)

Question 2

Landmark case.
Can you recall the details of A and X and others v Secretary of State for the Home Department (2004)

Answer 2

The original case was brought by 9 individuals who were threatened with deportation without trial on the basis that there was some evidence that the individuals posed a national security threat. The 9 challenged this deportation decision of the Special Immigration Appeals Commission. All 9 were later detained under the Anti-Terrorism, Crime and Security Act 2001 pending deportation. Section 4 of this act enabled the individuals to be held indefinitely, without trial or deportation.

Question 3

Name the ‘Superior Judges’ in the Judiciary Hierarchy.

Answer 3

Superior Judges

Head of the Judiciary - President of the Courts of England & Wales (in practice the Lord Chief Justice) (Constitutional Reform Act 2005)

Most senior judges - Justices of the Supreme Court -Supreme Court & Privy Council
(Constitutional Reform Act 2005 replaced the House of Lords with the Supreme Court in 2009)

Court of Appeal - Lord & Lady Justices of Appeal (Head of Criminal Division)
Lord Chief Justice (Head of Civil Division)
Master of the Rolls

High Court - sit in 3 divisions (Family, Chancery, Kings Bench Division)

Question 4

Name the ‘Inferior Judges’ in the Judiciary Hierarchy.

Answer 4

Inferior Judges
Circuit judges - Crown Court & County Court
Recorders - (part-time) County Court &
Crown Court
District judge - Magistrates’ court
District judges - County Court

Question 5

Describe the role of the Lord Chancellor.

Answer 5

Role of Lord Chancellor - Constitutional Reform Act 2005 has maintained the role but the powers of the Lord Chancellor have been severely curtailed as a result of the Act. The Lord Chancellor is now head of the Ministry of Justice: he is no longer head of the judiciary and no longer sits as a judge in the House of Lords.

Question 6

Describe the judiciary appointments process.

Answer 6

Judiciary Appointments Process
* Constitutional Reform Act 2005 - Establishment of Judicial Appointments Commission.

• Judicial Appointments Commission - 14 members (5 lay, 5 judges, 2 legal professionals, a lay magistrate and a tribunal member) appointed by the King on the recommendation of the Lord Chancellor.
• Tribunals, Courts and Enforcement Act 2007 - eligibility to become a judge no longer based on numbers of years of rights of audience, but now on number of years post qualification experience.
• Crime and Courts Act 2013- new selection process, ‘equal merit provision’.

Question 7

Name the 5 ways in which a judge may leave office.

Answer 7

Dismissal: there are 5 ways by which a judge may leave office:

1. Dismissal - High Court judges and above (Act of Settlement 1700; Courts Act 1971 &
   Constitutional Reform Act 2005).
2. Suspension from office (Constitutional Reform Act 2005 - set up disciplinary procedures)
3. Resignation
4. Retirement – usually retire at 70
5. Removal due to infirmity

Question 8

Why is it important for judges to be independent?

Answer 8

Independence
* Judicial independence is of paramount importance. It is a necessary condition of impartiality and, therefore, of a fair trial. Judges should be independent (from the Executive, interest groups, and litigants); should have an independent pay review; have no other paid appointment or
profession or business; not sit on a case where has or appears to have personal interest/bias - e.g. Lord Hoffmann in Re Pinochet Urgarte (1999)

Question 9

What threats are there to judicial independence?

Answer 9

• Threats to judicial independence from the supremacy of Parliament - judges are subordinate to the will of Parliament. Note the recent Gina Miller Brexit case, R (Miller) v Secretary of State for Exiting the European Union (2017).
• Judges have been seen to show political bias: see R v Ponting (1985). As well as political bias, some cases show a bias towards the right wing of the political spectrum, e.g. - Bromley London Borough Council v Greater London Council (1982); Council of Civil Service Union v Minister for the Civil Service (1984); Thomas v NUM (1985).