judicial independence

Question 1

describe judicial independence

Answer 1

-judges should be unbiased and fair
- this is why independence is guaranteed under the constitutional reform act 2005, stating that the lord chancellor or other body must uphold the independence of the judiciary.
-it also states that the government ministers and lord chancellor must not seek to influence judicial decisions.
-thus no person can judge a case they have an interest in, including if the judge is interested in the case for reasons of promotion
- test for bias has been influenced by the European convention on human rights

Question 2

give a case example where there has been bias

Answer 2

howell v less millais 2007
a judge named smith J was negotiating a job with a law firm
after the negotiations broke down , a case involving that firm came before him
despite potential bias, smith J refused to step down from the case
the CA criticized his actions and he was referred to the JCIO and was reprimanded

Question 3

Describe montesquieu theories

Answer 3

-theory introduced by Montesquieu, a French political theorist
-theory states that there are three primary functions of the state, and that these three functions should be separate in order to protect the liberty of citizens
- if each function is separate and independent, then each can keep a check on others and thus limit the amount of power wielded by any one group
- the three functions are: the legislative (parliament), executive: (government), judiciary: judges

Question 4

how are judges protected from outside pressure when exercising their judicial functions?

Answer 4

-given a degree financial independence, as judicial salaries are paid out without the need for Parliament’s authorization
- judges have immunity from being sued for actions taken or decisions made in the course of their judicial duties
- there is security of tenure for superior judges

Question 5

what are the challenges that judges face to be independent from political bias

Answer 5

-during the 1990s, there were several challenges under judicial review to executive actions.
- for example in 1995 it was held that changes made to the criminal injuries compensation scheme made by the Home secretary were unlawful.
-the judiciary also makes the government comply with the European Convention on human rights. For example, they can declare that an Act is incompatible with a convention, thereby not possible to be passed.
- Another notable example is when the Prime Minister in 2016 announced the intention for the UK to leave the EU. Judges challenged the power to do so without the authority of an Act of Parliament. The Queen’s Bench Division made a declaration that there was no such power to leave the EU without Parliament’s authority.

Question 6

Explain how the three functions of Montesquieu theories overlap

Answer 6

-the overlap is that the LC is involved in all three functions of the state, and the ministers forming the government also sit in the parliament
-however, besides that, there is very little overlap, for example judges are not allowed to be members of the house of commons, unless they are part-time judges such as recorders, which is important because it allows the judiciary to act as a check and ensure the executive does not overstep its bounds.
-it is important to also mention that the house of lords used to be the final court of appeal. however, the creation of the supreme court in 2009 was done to further separate the powers from the judiciary and the legislative