Judicial Independence and Neutrality Flashcards
what principles does the justice system rest on?
The justice system rests on 2 key principles; judicial independence and neutrality
what is meant by judicial independence and neutrality? what are judges meant to be?
judges are meant to be strictly impartial and non-political, this is one of the basic differences between liberal democracies and authoritarian regimes
in authoritarian regimes, the courts become instruments of the state
in liberal democracies, the law is interpreted by judges who are independent and neutral
how can judges be political or biased?
judges can be political or biased in two ways…
- external bias = influenced by other political bodies like the executive or Parliament
- internal bias = influenced by their own prejudices and sympathies
these biases are meant to be kept at bay through judicial independence and neutrality
JUDICIAL INDEPENDENCE: what is judicial independence?
judicial independence = the principles and actions of judges should not be influenced by pressure from other branches of government, particularly the executive
judges must be free from political interference
this is vital as they may be called on to administer justice in cases where there is a conflict between the state and an individual citizen
JUDICIAL INDEPENDENCE: what is judicial independence a key part of?
judicial independence is a key part of the constitution and vital to the rule of law
JUDICIAL INDEPENDENCE: what must the people and judges be sure of?
people must know that they will receive impartial justice
judges need to be confident that they can make a decision without fear of damaging their career prospects
JUDICIAL INDEPENDENCE: what is judicial independence based on?
judicial independence is based on the separation of powers
essentially, there should be a strict separation between the judiciary, the executive and Parliament
JUDICIAL INDEPENDENCE: what does judicial independence allow judges to do?
judicial independence allows judges to apply the law using their own experience and legal training rather than as other bodies of the government would wish
if the executive and Parliament can influence judges and how they apply the law, the law cannot act as a restraint on the government — therefore, judicial independence is vital to the rule of law
JUDICIAL INDEPENDENCE: in what ways is independence maintained?
ways independence is maintained…
- appointment process
- security of tenure
- pay
- freedom from criticism
- independent legal profession
- role of the Lord Chancellor
- creation of the Supreme Court
- greater institutional autonomy
JUDICIAL INDEPENDENCE: how does the appointment process maintain judicial independence?
The appointment process involves little political interference, otherwise judges would be appointed on the basis of their sympathies or leanings towards the government
they used to be appointed by the Prime Minister and Lord Chancellor but the JAC (Judicial Appointments Commission) was established under the 2005 CRA which has introduced greater independence to the appointment process
The JAC and Selection Commission are transparent in their appointment procedure and free from political intervention
JUDICIAL INDEPENDENCE: how does security of tenure maintain judicial independence?
security of tenure means that once appointed, judges cannot be fired
they remain in office until they retire at 70 — The official retirement age is the only limit on their service
this ensures independence because if judges could be removed or demoted then this could be used to influence their decision making
senior judges can only be removed by a
petition from both Houses (this has not happened since 1830), while junior judges can only be removed by the Lord Chancellor due to ‘bad behaviour’ such as being found guilty of a criminal offence
judges cannot be removed from office unless they break the law
judges are also immune from legal action arising from any comments made on cases in court
JUDICIAL INDEPENDENCE: how does pay maintain judicial independence?
judges salaries are safeguarded from political influence
they are paid out of the Consolidated Fund which is not subject to annual review by the House of Commons
their salaries are decided by an independent pay review body and judges are paid automatically from an independent budget without the possibility of manipulation by ministers
however, this did not prevent a freeze on judicial salaries and changes to judicial pensions under the 2010-15 government
JUDICIAL INDEPENDENCE: how does freedom from criticism maintain judicial independence?
The judiciary is free from criticism
constitutional conventions forbid MPs and peers from putting pressure on judges by criticising their court rulings and decisions in parliament
The ‘subjudice’ rule forbids people (including politicians) from commenting on cases currently being considered
JUDICIAL INDEPENDENCE: how does the independent legal profession maintain judicial independence?
The legal profession is independent
judges are appointed from lawyers who belong to an autonomous legal profession
The Law Society and Bar Standards Board regulate the legal profession, not the government, which also means lawyers and judges are not trained by the state and are therefore more independent
JUDICIAL INDEPENDENCE: how does the reformed role of Lord Chancellor maintain judicial independence?
The many roles of the Lord Chancellor used to be a major threat to judicial independence because he was both the head of the judiciary and a member of Cabinet
since 2006, the role has been transferred to the Lord Chief Justice and the Lord Chancellor’s influence over judicial appointments has been reduced
under the CRA 2005, the Lord Chancellor has to swear an oath to defend judicial independence