the judiciary

Question 1

What do Courts do?

Answer 1

• Courts decide legal disputes
• Courts interpret legislation
• Courts develop the common law.
• Courts uphold key constitutional principles such as the rule of law and the separation of powers
• The ways that courts conduct these tasks informs us of the proper conception of the judicial role.

Question 2

The Judicial System in England and Wales

Answer 2

Question 3

First Instance Courts

Answer 3

• Lower courts and tribunals e.g. magistrates’ courts, the county court, First-tier Tribunal.
• First-instance courts role is to hear cases for the first time
• High Court is a First Instance Court in Judicial Review cases = judge reviews the lawfulness of a decision or action made by a public body.
• They are normally involved in fact-finding = hearing witnesses and considering evidence
• First Instance courts then apply the relevant law to those facts to reach a decision

Question 4

Appellate Courts

Answer 4

• Deal with appeals from lower level courts
• Court of Appeal has a Criminal and a Civil Division
• Court of Appeal hears appeals on public law matters from High Court
• Appeals on points of law only
• Court of appeal deals with important points of legal principle and application of law

Question 5

The UK Supreme Court

Answer 5

• UK Supreme Court sits at the apex of the UK court system.
• UKSC is the final court of appeal for all United Kingdom civil cases, and criminal cases from England, Wales and Northern Ireland
• UKSC is only ever concerned with determining the most important legal issues.
• UKSC hears appeals on arguable points of law of general public importance
• Its task is to concentrate on cases of the greatest public and constitutional importance, and to maintain and develop the role of the highest court in the UK as a leader in the common law world.

Question 6

3 main categories of Dispute

Answer 6

1. criminal justice
2. civil justice
3. administrative justice.
   - Public Law = focus on the administrative justice process
   - Administrative justice is concerned with legal challenges against public or governmental decisions.
   - We focus on judicial review challenges against the legality of public decisions, determined by the Administrative Court (High Court) and (sometimes) Upper Tribunal.

Question 7

R (on the application of Evans) and another v Her Majesty’s Attorney General [2015]

Answer 7

• The FOIA 2000 permits public access to government documents with exemptions.
• A Guardian journalist requested Prince Charles’ letters to government departments.
• Departments initially refused citing exemptions.
• Upper Tribunal ruled many letters should be released.
• Attorney General issued certificate supporting departments’ refusal.
• Attorney General can veto tribunal decisions under FOIA 2000.
• Judicial review possible for Attorney General’s veto.
• UK Supreme Court found Attorney General’s veto unlawful.
• Letters must be released as per tribunal’s decision.

Question 8

Role of Courts in Public Law Cases

Answer 8

• Judicial Review - a governmental body has made a decision that adversely affects the rights or interests of an individual who wishes to challenge the legality of that decision before the courts.
• Courts form a necessary part of a balanced machinery of government under the separation of powers doctrine.
• Courts are a crucial part of the network of checks and balances that are needed if the powers of the other branches of government are to be adequately controlled.

Question 9

Judicial Review

Answer 9

• Unlike private law disputes, Judicial Review involves additional, specific issues:
  
  • The unequal relationship between citizen and state
  • The state is tasked with enacting policies to pursue the public good e.g. health, environment, education, defence etc.
  • The state may interfere with the rights and interests of individuals when pursuing public policies
• UK public law requires public bodies to comply with special legal standards e.g. principles of good decision-making, aspects of the rule of law and the protection of fundamental human rights
• Public bodies are thus bound by special standards. This acknowledges that the relationship between the individual and the state is an unequal one

Question 10

Judicial Appointments: The Good Old Days?

Answer 10

• Judicial appointments are formally a matter for UK Executive
• King’s judges are appointed by the King on advice of King’s Ministers (Prime Minister and Lord Chancellor)
• Old process was not transparent, “tap on the shoulder” system
• Vacancies at senior levels not often advertised, people informally approached and invited to apply.
• Much of the system was based on info supplied to Lord Chancellor by existing members of the judiciary.
• Government Minister closely involved in appointment of Judges…

Question 11

Constitutional Reform Act 2005

Answer 11

• CRA 2005 aims to bring about clearer separation of powers in the UK
• Until 2005, the head of the judiciary was a Cabinet minister, the Lord Chancellor.
• In an extraordinary breach of separation of powers, he could also sit as a judge in the UK’s highest court.
• CRA 2005 removed the Lord Chancellor as head of the judiciary, handing that responsibility to the Lord Chief Justice
• CRA 2005 created a new UK Supreme Court
• CRA 2005 established a new body, the Judicial Appointments Commission (JAC), which is responsible for making judicial appointments in England and Wales

Question 12

Judicial Appointments Commission – Role

Answer 12

• The Judicial Appointments Commission (JAC) is an independent commission that selects candidates for judicial office in courts and tribunals in England and Wales
• The JAC selects candidates for judicial office on merit, through fair and open competition, from the widest range of eligible candidates.
• JAC was set up under the terms of the CRA 2005
• JAC aims to maintain and strengthen judicial independence by taking responsibility for selecting candidates for judicial office out of the hands of the Lord Chancellor and making the appointments process clearer and more accountable.

Question 13

Judicial Appointments Commission – Composition

Answer 13

• There are 15 JAC Commissioners, including the Chairman.
• All are recruited and appointed through open competition (except 3 judicial members selected by the Judges’ Council)
• 15 members appointed by Lord Chancellor BUT he does not have a free hand in making such recommendations
• Lord Chancellor only permitted to recommend the appointment of individuals who are nominated by the Judges’ Council or by a panel that includes the Lord Chief Justice.
• Membership of the Commission is drawn from the judiciary, the legal profession, non-legally qualified judicial office holders and the public.

Question 14

Criteria for selection

Answer 14

• JAC is required by law to apply certain criteria when selecting candidates for judicial office – experience, merit & good character
• Process is much more transparent than it used to be.
• Vacancies are advertised, JAC publishes extensive information about the criteria and processes used in selection.

Question 15

Appointments to the UK Supreme Court

Answer 15

• When a vacancy arises, CRA 2005 requires Lord Chancellor to convene an Ad Hoc Supreme Court Selection Commission (CRA 2005, s 26, 27.)
• Ad Hoc Supreme Court Selection Commission Composition = 5 members = 1 member of UKSC, 1 lay member, 1 member from Judicial Appointments Commission and 1 Scottish and 1 Northern Irish equivalents.
• The ad hoc UKSC selection commission must consult senior judges, the Lord Chancellor, First Ministers of Scotland, Wales and Northern Ireland.
• Once a Recommendation has been made, Lord Chancellor under a statutory duty to consult various parties about the recommendation.
• The Lord Chancellor may:(a) require the Supreme Court Selection Commission to reconsider its recommendation; or(b) reject the recommendation altogether.
• The Lord Chancellor will make a recommendation to PM and PM advises Queen.
• Thus, Lord Chancellor does NOT select the candidates for presentation to the Prime Minister BUT retains a VETO on who may be nominated.

Question 16

Appointments to the Judiciary: Considerations

Answer 16

• The appointment of the judiciary is a matter of significant constitutional importance and legitimate public interest.
• Widely accepted that the system of judicial appointments should be based upon the principles of judicial independence, appointment on merit, accountability, and the promotion of diversity
• Adequately reconciling these considerations is vital for maintaining public confidence in the judiciary and the legal system as a whole
• BUT who should appoint judges?
• What is the appropriate role for the executive, legislature, and the judiciary itself in making judicial appointments?
• How should judges be appointed? Role for Parliament?

Question 17

Judicial Independence

Answer 17

• Elliott and Thomas: “Judicial independence…is the idea that judges should be free to interpret and apply the law in an objective way, free from political interference, and free from any need to worry about public opinion.”
• Latimer House Principles (Commonwealth Heads of Government 2003) , IV – “An independent, impartial, honest and competent judiciary is integral to upholding the rule of law, engendering public confidence and dispensing justice”

Question 18

Why is Judicial Independence Important?

Answer 18

• It is vital that each judge is able to decide cases solely on the evidence presented in court by the parties and in accordance with the law.
• Only relevant facts and law should form the basis of a judge’s decision. Only in this way can judges discharge their constitutional responsibility to provide fair and impartial justice
• The responsibilities of judges in disputes between the citizen and the state = responsibility of the judiciary to protect citizens against unlawful acts of government

Question 19

Upholding Judicial Independence in the UK

Answer 19

• Separation of powers in the UK does not apply rigorously to relationship between executive and legislature.
• BUT the doctrine has long been taken with much greater seriousness in relation to the judiciary.
• Fundamental concept of judicial independence = 1701 Act of Settlement.
• Act of Settlement formally recognised security of judicial tenure by establishing that judges hold office during “good behaviour.”
• Until 2005 there was no statutory reference to the principle of judicial independence as such
• Many rules and customs protecting judicial independence based on constitutional convention – e.g. convention that executive will not criticise the judiciary

Question 20

Institutional Independence

Answer 20

• The creation of a UK Supreme Court
• Independence of Judiciary reinforced by Article 6 ECHR requirements
• Selection of judges now involves Judicial Appointments Commission
• Section 3(1) CRA 2005 – A legal duty on Lord Chancellor and other government Ministers to uphold independence of the judiciary
• Section 3(5) CRA 2005 The Lord Chancellor and other Government Ministers must not seek to influence particular judicial decisions through any special access to the judiciary.
• Section 3(6) CRA 2005 - The Lord Chancellor must have regard to—(i) need to defend judicial independence(ii) need for judiciary to have support necessary to carry out functions(iii) need for public interest to be properly represented in matters relating to the judiciary
• House of Commons Long-standing rule that MPs must not comment on conduct of individual judges or judges generally
• Sub Judice Rule = matters awaiting judicial resolution must NOT be raised in any motion, debate of question in Parliament.
• Sub Judice Rule = Seeks to protect right to a fair trial rather than (or in addition to?) the status of judges.
• No mention of such duties in the Ministerial Code. Should there be?

Question 21

Independence of Individual Judges

Answer 21

• Judges “must be independent of anybody or anything which might lead them to decide issues coming before them on anything other than the legal and factual merits of the case as, in the exercise of their own judgement, they consider them to be.” (Lord Bingham)
• Judges must be free any improper influence.
• Such influence could come from any number of sources = improper pressure by the executive or the legislature, by individual litigants, particular pressure groups, the media, self-interest or other judges, in particular more senior judges.
• Security of Tenure – “A judge of the Supreme Court holds that office during good behaviour, but may be removed from it on the address of both Houses of Parliament.” (Section 33 CRA 2005 and Section 11(3) Senior Courts Act 1981
• Immunity from civil liability for what is said and done in the course of judicial function
• Protection from dismissal (except in limited circumstances e.g. illness or power of removal by His Majesty on an address presented to Him by both Houses of Parliament)
• Salaries and conditions protected from interference by the executive

Question 22

Judicial Independence in the EU - CJEU Commission v Poland

Answer 22

CJEU Commission v Poland:
* “it is necessary that judges are protected from external intervention or pressure liable to jeopardise their independence. The rules applicable to the status of judges and the performance of their duties must, in particular, be such as to preclude not only any direct influence, in the form of instructions, but also types of influence which are more indirect and which are liable to have an effect on the decisions of the judges concerned, and thus preclude a lack of appearance of independence or impartiality on their part likely to prejudice the trust which justice in a democratic society governed by the rule of law must inspire in individuals”

Question 23

Judicial Independence in the EU

Answer 23

• The requirement that courts be independent has two aspects to it
• The first aspect is external in nature.
  
  • Courts must function autonomously without hierarchical constraints or external influence, safeguarding their judgment from external pressures or interventions that could compromise their independence.
• The second aspect is internal in nature.
  
  • Courts must maintain impartiality, ensuring an equal distance from all parties involved in proceedings and their interests. This requires objectivity and a focus solely on the application of the rule of law
• These guarantees necessitate specific rules regarding the composition of the court, appointment procedures, terms of service, and grounds for abstention, rejection, and dismissal of members. Such rules aim to eliminate any doubts about the court’s neutrality and resistance to external influences.
• As is also clear from settled case-law, the necessary freedom of judges from all external intervention or pressure requires certain guarantees appropriate for protecting the individuals who have the task of adjudicating in a dispute, such as guarantees against removal from office

Question 24

The Diversity of the Judiciary

Answer 24

• A ‘judiciary which is visibly more reflective of society will enhance public confidence’.
• Also, a diverse judiciary allows for a wider range of perspectives to be reflected in judicial decision-making
• JAC cannot positively discriminate, but it can take account of the need to increase judicial diversity when making judicial appointments and there are two applicants of equal merit.
• Statute now allows flexible part-time working for judges = people with caring responsibilities—who are disproportionately female—can be accommodated within the judicial career structure. (Senior Courts Act 1981, ss 2 and 4 (as amended by the Crime and Courts Act 2013).