Independence of the Judiciary Flashcards
4 elements
1) dismissal and discipline
2) immunity from suit/ protection
3) universal declaration of human rights
4) separation of powers
what acts makes it v. difficult to dismiss superior judges as it enables judges to make decisions + comments without fear of dismissal
The Supreme Court Act 1981 and The Constitutional Reform Act 2005
when can superior judges be removed
for physical/ mental incapacity, or serious misconduct following a Parliamentary vote
what do inferior judges not have that superior judges do + what does this mean
inferior judges do not have the same level of tenure + can be removed by the Lord Chancellor for incapacity/ misbehaviour
what act allows the Lord Chancellor to remove inferior judges
Courts Act 1971
under what act must the Lord Chancellor follow set procedures to remove a judge + what is the exception
the Constitutional Reform Act 2005, however the Lord Chief Justice has power under act to suspend a judge
how do judiciary receive immunity from suit (protection)
judges cannot be prosecuted or sued by any of the parties in a case for what they say/ decisions
what case confirmed judges cannot be prosecuted/ sued and what did Lord Denning say
Sirros V Moore - Lord Denning - a judge ‘‘should be able to do his work in complete independence’’
what does the universal declaration of human rights enshrine
the principles of equality before the law (presumption of innocence, right to fair + public hearing by a competent, independent + impartial tribunal established by law
explain the separation of powers
Montesquieu’s theory - the 3 powers of the state must be kept separate to safeguard liberty
- legislative
- executive
- Judiciary
how is the judiciary independent from the legislature
not generally involved in law making, full time judges not allowed to be MPs
how is the judiciary not independent from the legislature
- legislature makes the law relating to the appointment of judges & their removal
- Lord Chancellor involved in all 3 functions of the state
how is the judiciary independent from the executive
superior judges cannot be dismissed by the government so are truly independent, can make decisions free from fear of dismissal
how is the judiciary not independent from the executive
can be pressured to resign e.g. Harman J
how does the judiciary have financial independence
salaries paid from the consolidated fund - requires authorisation from parliament
how does the judiciary have independence from case (natural justice)
judges must not try any case where they have an interest
in what case was one of the Law Lords connected with Amnesty
Pinochet
4 reasons for independence
1) protects the liberty of the individual
2) so Judges can act without fear of repercussions
3) impartiality
4) no interference
advantages of judicial independence
1) protects the liberty of the individual
2) apply the law impartially and justly
3) maintain public confidence in the fairness of the judicial system
4) number of applications for judicial review of government action has increased
5) the HRA 1988
in what case did the HoL rule that the minister had exceeded his power
DPP v Hutchinson
why is the no. of applications for judicial review of gov. action increasing an advantage
it reflects the willingness of the judiciary to make a stand against the gov. if the law requires it
following the introduction of the HRA what was the judiciary required to do + example
challenge laws made by the gov. as being incompatible - e.g. Anti-Terrorism Crime & Security Act 2001
