Independance of the judicairy Flashcards
How is the judiciary independent?
Security of tenure
Immunity from suit
What is security of tenure?
Senior judges cannot be dismissed by the gov. Only by the monarch after a petition from both Houses of Parliament. Junior judges can be dismissed by the Lord chancellor with permission from the Lord Chief Justice.
What is immunity from suit?
Have full immunity from any criminal prosecution for any acts carried out in their duty’s. Including defamation.
What is the case for immunity from suit?
Sirros V Moore - judge wrongfully ordered someone’s detention in crown. Thought he was acting lawfully.
How are judges independent from the Legislature? ( 4 points )
1) Judges generally not involved in law making functions of parliament.
2) Main reason for Supreme Court being made was so judges were not part of House of Lords anymore ( Appellate committee)
3) Salaries are paid out from Consolidated Fund which doesn’t need parliaments permission.
4) Parliament can change the retirement ages and qualifying periods of service for pensions.
What is the Appellate committee?
Used to be the final court of appeal but sacked off for Supreme Court in 2009 so no judges in HOL
How are judges independent from the executive?
1) Senior judges cannot be dismissed by gov so can rule against ministers
2) s3 of the constitutional Reform Act 2005
What does s3 of the Constitutional Reform Act state?
Lord chancellor and other ministers ( anyone with responsibility of the judiciary ) in gov must hold up independence of the judiciary.
The Lord chancellor and gov ministers must not seek to influence judicial decisions.
What is independence from the case?
Judges must not hear or try any case in which they have an interest.
This was confirmed in the Pinochet case.
What is judicial review? ( Seperation of powers )
Hearing takes place in Divisional court of KBD when decisions of gov ministers can be challenged by someone who has “standing”. Judges are prepared to find against ministers.
When someone has “standing” what does it mean?
Someone who is affected by a decision.
What are two cases for judicial review?
R v Home Secretary ex parte Fire Brigades Union - changes to the criminal injuries compensation schemes were unlawful.
R v Secretary of State for the Home Department - Collins J in the HC declared that it was unlawful for the Home Secretary to refuse to give assistance to asylum seekers who didn’t declare their intention to claim asylum. COA upheld this decision but the relevant act could be compatible with human rights.
Can judges hear human rights cases?
Yes and are prepared to find against the government. The Human Rights Act 1998 put European Convention on Human Rights into UK law and judges can declare and an Act is incompatible with the Convention. This puts pressure on gov to change law to fit ECHR.
Case for human rights?
A and others V Secretary of the state for Home Department — HOL declared Anti - terrorism , crime and security Act 2001 was incompatible with ECHR. The act allowed foreign nationals to be held indefinitely if accused of terrorism. This breached article 5 ( liberty ) and 14 ( no discrimination on basis of nationality ) - gov had to changed law
4 criticisms of judicial independence?
On 1st April 2020 :
Age — 76% over 50, 40% of 60
Women — 32% of all court judges were woman, 26% senior.
BAME — black, Asian, minority ethnic
BAME — 8% all court judges
