Separation of Powers and Judicial Independence A03 7/13

Question 1

What are the 3 arms?

Answer 1

1. Executive = (Government) -> Suggest the Law
2. Legislative = (Parliament) -> Make the Law
3. Judiciary = (Judges) -> Apply the Law

Question 2

What are the 3 arms of Governance and who came up with them?

Answer 2

• French political theorist Montesquieu
• 3 arms kept separate to prevent 1 becoming too powerful and arbitrary government. Safeguard individuals liberty
• Each arm can exercise control over others

Question 3

How do the Sep of Powers provide Judicial Independence?

Answer 3

• Security of Tenure to judiciary via Act of Settlement
• Judges cannot question legality of legislation
• Judges try to achieve Parliament’s intentions when carrying out statutory interpretation

Question 4

Controls between the 3 arms of Governance?

Answer 4

• Judiciary perform judicial review to check executive
• Legislature has some control over judges employment terms (pay + retirement age)
• Legislature can amend a law if minister has been acting ultra vires

Question 5

Adv judicial independence (sue)

Answer 5

• Judges cannot be sued for something done in judicial function
• Gives freedom to make unpopular decisions
• Less likely to be influenced to certain decision

Question 6

Adv judicial independence (appointment)

Answer 6

• Appointed by Judicial Appointments Commission, ensuring independence and neutrality
• Reduces political patronage
• Appointed on merit and aptitude
• It’s argued there’s still a political element to appointment (❌)

Question 7

Adv judicial independence (politics)

Answer 7

• Kept free of politics (can’t be MP’s, can’t make political comments)
• Parliament + ministers also cannot comment on cases
• Stops them influencing each other

Question 8

Adv Judicial Independence (Tenure)

Answer 8

• Security of Tenure stops them being dismissed except for misconduct
• A motion from Parliament is needed to remove superior judge
• Need a good reason to remove inferior judges
• Recorders contracts must be renewed except for good reason

Question 9

Adv of judicial independence (Salary)

Answer 9

Judges salaries are guaranteed so cant be reduced to put pressure on them

Question 10

Adv of judicial independence (diversity) (H)

Answer 10

Attempts are being made to diversify the judiciary with more women and ethnic minorities
(H) - Still very few women and ethnic minorities in senior positions
- Also still bias towards people educated privately + Oxbridge, suggests “establishment” approach

Question 11

Adv of judicial independence (Experienced)

Answer 11

• Judges are experienced courtroom lawyers
• Used to serving the rule of law in a neutral way
• Underpins independence and neutrality