Chapter 7: Judiciary Flashcards
What are the 6 roles of judges?
- Dispute Settlements - interpreting, clarifying, aplpying, declaring the law
- Case management - Making sure trials are efficiently ran
- Training (for new judges/refresher for existing ones)
- Extra-judicial activities - speeches/lectures
- Judicial Review
- Upholding ROL
What were the main critisms on the judiciary before the Constituional Reform Act 2005?
Lacking judicial independence
- LC (head of LCD) handpicked by PM - politcal influence
- Lord Chancellor’s Department (LCD) - responsible for the selection and appointment of judges
- Position of Lord Chancellor (was a speaker in all 3 organs)
- Composition of the judiciary (was not diversed - Dominated by white, males, oxbridge educated/public school, middle & upper-middle class)
What is the nature and characteristics of judicial accountability & independence?
- It is linked to concept of separation of powers
- Judiciary impartial and independent, free from all internal & external pressures (should not be swayed/affected by pressure in their judgements)
What are 8 examples of internal and external pressures that judges may face in whcih judges may not be affected by?
- Executive
- Legislature
- Individual litigants
- Pressure groups
- The media
- Powerful corporations
- Self-interest
- Other senior judges
What is the concept of ROL?
The fundamental constitutional concept that is used to describe the factors necessary for a well-functioning state and to constrain the exercise of arbitrary powers
What is the concept of judicial independence?
What academic says it is necessary for a democratic state?
- The vital importance of this independence follows from the judiciary’s core responsibility. it is the branch of the state responsible for providing the fair and impartial resolution of dispute between citizens and the state or state entities under the prevailing rules of statute or
Sir Igor Judge observes that
- It is not a privilege of the judges themselves. But is necessary for public in a democratic state to ensure that people can live securely and that their liberty is safeguarded and only interfered with when the law permits it
What are the 2 key aspects of judicial independence?
- Personal independence
- Institutional independence
What is Personal Indipendence?
Individual cases must be free from all elements of personal interest/motivation directly and indirectly, and decided purely on the strict application of ROL to the evidence presented. They must be fearless in their judgement, demonstrating moral courage and legal accuracy
free from bias
What is the statute and case ‘test’ that supports the concept of personal independece of the judiciary?
Compliance to Article 6 ECHR
- “in the determination of his civil rights & obligations/any criminal charge against him, everyone is entitled to a fair & public hearing…by an independent & impartial tribunal…”
Porter v Magill (2001) test - ‘no bias’ test
- First - Court considers all the circumstances where there is alleged/possible bias
- Second - Judges ask the question: “Whether the fair minded & informed observer, with regard to all the facts, would conclude there was a real possibility of bias?”
What is institutional independece?
The entire judiciary must be independent & separate from other arms of state (e.g. legislature & executive)
What 4 importances has the Constitutional Reform Act 2005 brought to institutional independence
Creation of UKSC
- Enhances appearance of judicial independence
Changes to role of LC
- Remains only in the executive body
Creation of Judicial Appointment Commission
- Selection of judges is now done by the JAC
Codification of Judicial Concenpt
- Section 3(1) CRA 2005
What does section 3(1) CRA 2005 state in codification of the judicial concept?
Lord Chancellor, Ministers and all individuals who take part in matters related to the judiciary and administration of justice have an active role to continue to promote and uphold the “continued independence of the judiciary.”
What are the 3 other existing laws that protect judicial independence
- Security of tenure - Judges hold office, are subjected from the requirement of good behavior
- Security of salary - Salary is fixed
- Immunity from suit (Sirros v Moore) - Judges should be able to discharge their duty with complete independence & free from fear
What are the 7 reasons why the reform of CRA 2005 was needed?
Importance of judicial independence
- Judges are public figures responsible for upholding liberties & administration of justice
- Judges are expected to exercise equality
- Judges must be completely impartial & objective
- Judges live in Ivory Tower
- Impact of the Human Rights Act 1998
- Uphold the Separation of Powers
- Development of law
When and who announced the reform proposals?
What did he say the effect/impact of reform would be for the judges?
In June 2003 - Tony Blair (then PM) announced several major constitutional changes, as it would greatly impact
- The role of judges
- The appointment of judges henceforth
What were the 5 proposals for reform stated by Tony Blair?
- Abolishing the role of the Lord Chancellor
- The LCD will now be designated as the Dept of Constitutional Affairs (note - now changed to Ministry of Justice)
- The abolishing of the Judicial branch of the HOL as the highest appellate court
- Setting up of UKSC (effective 1st Oct 2009)
- Creation of a Judicial Appointments Commission (in charged of selecting judghes)
What is the current appointment body for selecting candidates as to-be judges?
Judicial Appointments Commission
What date was the JAC created?
What introduced the JAC?
Created on 3rd April 2006 following the CRA 2005 reforms
JAC was introduced in Part 4 of the CRA 2005
How many members are in the JAC? And who are they?
JAC comprises of 15 members in total
- 1 chairman
- 5 judges
- 2 lawyers
- 1 lay justice (magistrate)
- 1 tribunal member
- 5 other laymen
What is the function of the JAC?
1) To select and recommend the best qualified candidates regardless of
- Gender, ethnic origin, marital status, sexual orientation, political affiliation, religion, and disability
2) Statutory duty to consider how best to widen the pool of applicants to increase diversity of the judiciary
- Responsible for a modern, transparent appointments system
What are the 2 focuses/aims of the JAC?
What are the 4 objectives that they want to preseve?
Provide info about being a judge
- Provide sufficient awareness amongst interested parties to understand the career expectancy
Look for suitable candidates & promote awareness amongst representation groups
- E.g. women, ethnic minorities
Objective is to preserve
* Equality
* Opportunity
* Diversity
* Fairness and balance
What is the 3 step selection process of the JAC?
- JAC is responsible for selection of all judges (except for those who are in the UKSC, which will replace the HOL)
- UKSC will be appointed by ad hoc commissions that will propose the selected candidates to the LC
- Then LC will propose to the PM to appoint the candidate (rubber stamping basically)
- Unless he decides to refuse/reconsider
LC has the final power to decide
What are the 3 statutory obligations of the JAC?
1) Judicial appointments are made solely on merit
- S63(2) CRA 2005 - solely on merit
2) But has to be both merit & diversity (only after 1st requirement)
- S64 CRA 2005 - encouragement of diversity
3) Only appoint people with good character
What are the 4 main changes the JAC has brought. Explain.
New simplified definition of merit
- Intellectual capacity
- Personal qualities
- Ability to understand and deal fairly
- Authority and communication skills
- Efficiency
Fairer system for filling High Court vacancies
- All candidates need to apply for vacancies
- All are shortlisted candidates that will be interviewed (F2F)
- References will be sought fairly and openly
More streamlined and objective application process
- JAC reduced the old application from over 20 pages to 9
- Introduced new, impartial process for all judicial officeholders
Improved marketing of vacancies
- JAC’s advertising will be more prominent and better targeted to encourage more people to apply
What are the advantages of the JAC?
- Allows fair and open competition, encouraging a wide range of applicants
- Secretive ‘invitation process’ is abolished (used to be tap on the shoulder)
- Reduced the aspect of patronage (privilege)
- Appointment is reassuring
- Allows better access to the judiciary
- Likely increases diversity
- Maintains the constitutional principle of The Queen acting on Ministers advice
What are still the 5 remaining issues of the JAC?
Process is still governed by consultation and still subject to political interference
- Government still has final say
Members of JAC are appointed by LC
- Whether independent votes are truly there, or is it being undermined by strategic election of its members?
Government (LC) has not given full appointment power to the JAC
- LC still has the ultimate control of the procedure (LC appoints candidates)
- He has the right to refuse proposed candidate but accept the next proposed candidate
- May lead to strategic considerations
JAC still lacks diversity
- The Guardian of 28 January 2008 reported that although the reform has taken place, the judiciary in the high court bench still remains as white male barristers and most which are educated at independent schools
The system was no better at creating a more diverse judiciary
- Keith Vaz, the barrister and Labour MP stated it is actually worse than before
- Previously, both Charlie Falconer and DErry Irvine (former LC) made the appointments
- Now it is up to Jack Straw to decide the standard of diversity
What sections and subsections of the CRA 2005 talk about the JAC selection & appointment process?
Section 27 - selection process
- Section 27(1)
- Section 27(2)
- Section 27 (5)
Section 29 - appointment process
- Section 29(2)
Section 30 - powers/limitations of LC
- Section 30(1)
- Section 30(2)
- Section 30(3)
What does Section 27 of the CRA 2005 (selection process) state?
Section 27(1)
- The JAC must: determine selection process, apply the selection process and make the selection accordingly
Section 27(2) - JAC must consult:
- Senior judges in UK (not part of the commission)
- SOS for Northern Ireland
- LC
- 1st Minister of Scotland
- 1st Secretary in Wales
Section 27(5)
- Selection must be based on merit (the 5 core qualities)
What are the 5 core qualities of merit that Section 27(5) uses to select candidates?
- Intellectual capacity
- Personal qualities
- An ability to understand and deal fairly
- Authority and communication skills
- Efficiency
What does Section 29(2) state?
The appointment process (2nd process)
Section 29(2)
- Where a person has been selected. LC can choose to accept, reject, or request to reconsider the selection
But note S30(1) & S30(2)
What does Section 30 state?
Powers/limitations of the LC
Section 30(1)
- LC can only reject the person if not suitable for office
Section 30(2) - LC can reconsider only if:
- Not enough evidence of unsuitability
- There is evidence the person is not the best candidate
Section 30(3)
- LC must give JAC reasons in writing for rejecting, recommending or reconsideration
What has the CRA 2005 done for the Judiciary? Are there still critisms on improvements that can be made?
The CRA 2005 has created the JAC which has strengthened judicial independence. Although there is still room to improve composition/diversity of judges.
What did the Select Committee highlight on the Constituion published on 28th March 2012?
regarding improvements on appointing candidates
Stated
- JAC should continue to be the primary appointment method for courts & tribunals. That the LC should have no power to determine the JAC’s membership. As this would damage JI and the perception of JI
- LC should continue to be limited in the appointment of senior members of the judiciary (but still having veto power for most senior appointments). LC should not be permitted to select candidates from a shortlist and sit on selection panels. This would hinder the appointment process & would undermine JI
What did the Select Committee recommned should be done to improve selection and appointment on 28th March 2012?
Recommneded that
- UKSC selection commission should increase in size, with more lay representation (magistrates)
- President and Deputy President for UKSC should not sit on the selection commissions formed to choose their successors
- LC’s power to reject or reconsider should transferred to the LCJ
- In principle, JAC should be responsible for the appointment of deputy High Court judges
- Judicial careers should be made clear, easing the movement between different courts and tribunals, and to seek promotions
What did the Select Committee recommend for diversity of the Judiciary on 28th march 2012?
- Appointments panels must include lay persons who can bring different perspectives to assess candidates. Also a good way to avoid self-replication
- All selection panels should be gender & ethnically diverse
- All involved in appointmenting process should take diversity training
What is the Act that created diversity changes post CRA 2005? What did was the aim?
Crime and Courts Act 2013
- Introduced a number of measures to improve transparency & efficiency in the appointment process and better diversity
What were the 4 areas of change/reform made by the Crime and Courts Act 2013
- Working arrangement for judges
- A new selection process
- Composition of selection panels
- Composition of JAC
What change and effect did working arrangement for judges have in the CCA 2013?
diversity change - post CRA 2005
Change
- Flexible working hours
- Flexible judicial deployment to allow judges to move between courts and tribunals
Effect
- This would encourage more people to join
What were the 7 changes that were created in the new selection process in the CCA 2013?
diversity change - post CRA 2005
1) Equal merit provision
- Where there are 2 or more candidates with same merit, then JAC would choose the option that betters diversity
2) Positions below High Court
- JAC no longer required to consult 2 judges with relevant knowledge of the judicial vacancies
- LC’s powers (accepting/rejecting/reconsider) transferred to the LCJ or Senior President of Tribunals
3) Senior appointments
- All selection bodies consists of 5 members
- Current office holders are disqualified from sitting on selection bodies to select their own replacement
- Selection body should include both genders & different races
- LC will be consulted as part of the selection process
4) COA appointments
- LC must consult LCJ before requesting 5 JAC members to convene (gather) for selection
5) UKSC appointments
- LC must convene (gather) a selection commission
6) Appointment of president of UKSC
- LC must convene a selection commission
7) Appointment of LCJ
- LC consult LCJ before requesting 4 JAC members
What change and effect did the composition of selection panels have in the CCA 2013?
diversity change - post CRA 2005
Change
- Must be an odd number and diverse in terms of gender and ethnicity
- Must have lay person for most senior appointments
Effect
- Better balance of lay and judicial influence
What change did composition of the JCA have in the CCA 2013?
diversity change - post CRA 2005
- More representative roles that JAC selects for those who apply for them
- 15 commissioners (including chairman)
- All candidates recruited through open competition - except 3 judicial members selected by Judge’s Council/Tribunals Council
- Membership of JAC Commission drawn from -
- Judiciary
- Legal profession
- Non-legally qualified judicial officer holders
- Public
What authority stated 3 arguments for the importance of diversity? What are the 3 importances?
2004 CDA consultation paper on Increasing Diversity on the Judiciary
- It creates equal opportunities
- Contributes to the legitimacy of the judiciary as an institution
- Allows varying perspectives on critical legal issues
Explain further the 3 arguments of the importance of diversity in the judiciary shared by the 2004 CDA consultation paper
It creates equal opportunities
- All qualified individuals should be able to apply and be selected on the basis of merit
- Failing to appoint the candidates will directly reflect the discrimination
Contributes to the legitimacy of the judiciary as an institution
- It is unacceptable for an unelected institution, the judiciary, to reflect neither diversity of society nor the legal profession
- Being representative or at least reflective, of broader society contributes to legitimacy and public confidence
Allows varying perspectives on critical legal issues
- Important for the exercise of judicial discretion and where policy influences judicial decisions in public interest
- Having different perspectives and values can better debate and decision-making
What are the 5 problems with creating diversity/reasons for the slow increase of diversity?
- Experience deficit
- Self-exclusion
- Selection bias
- The concept of ‘merit’ in action
- The principle of merit
What are the statistics of women judges, BAME office holders, and non-barristers from 2020 - April 2024
statistics
Women judges
- April 2020 - 32% of court judges, 47% of tribunal judges, 56% of magistrates.
- April 2021 - 34% of court judges
- April 2022 - 35% of court judges
- April 2023 – 37% of court judges
- April 2024 – 38% of court judges
BAME office holders
- April 2020 - 8% of court judges 12% of tribunal judges, 13% of magistrates
- April 2021 – 10% of court judges
- April 2022 - 10% of court judges
- April 2023 – 10% of court judges
- April 2024 – 10% of court judges
Non-barristers
- April 2020 - 32% of court judges
- April 2021 – 32% of court judges
- April 2022 - 31% of court judges
- April 2023 – 32% of court judges
- April 2024 – 31% of court judges
Who are the remaning women justices in the UKSC currently?
Today, only Lady Lustice Rose (Rose LJ) is the only white-woman as a UKSC justice
- Rose LJ is the 4th female UKSC justice
- The only woman justice left after Lady Hale, Lady Black, Lady Arden retired in 2022
