The Judiciary and Separation of Powers

Question 1

What is the judiciary?

Answer 1

A group of judges.

Question 2

Who is Lord Chief Justice?

Answer 2

Head of the judiciary in England & Wales and the President of the courts in England & Wales.

The Right Honourable, Lord Burnett of Maldon.

Under the Constitutional Reform Act 2005, the Lord has some 400 statutory (required by law) duties.

Question 3

What are their key responsibilities?

Answer 3

Representing the views of the judiciary of England and Wales to Parliament and Government.

The welfare, training and guidance of the judiciary of England and Wales. Discusses with Government the provision of resources for the judiciary, which are allotted by the Lord Chancellor.

The deployment of judges and allocation of work in courts in England and Wales.

Question 4

Who are the superior judges?

Answer 4

Those in the high court and above:
The Justices of the Supreme Court
The Lords Justices of Appeal
High Court Judges (Known as Puisne Judges)

Question 5

Who are the inferior judges?

Answer 5

Courts below the high court:
Circuit Judges 
Recorders 
District Judges 
District Judges (Magistrates’ Court)

Question 6

Justices of the Supreme Court

Answer 6

sit in the Supreme Court.

Question 7

Lords Justices of Appeal

Answer 7

sit in the Court of Appeal.

Question 8

High Court Judges

Answer 8

sit in the three divisions of the High Court, including those who sit in the Queen’s Bench Division which also sit in the Crown Court.

Question 9

Circuit Judges

Answer 9

sit in both the Crown Court and the County Court.

Question 10

Recorders

Answer 10

part-time judges who sit in the Crown Court and sometimes sit in the County Court.

Question 11

District Judges

Answer 11

who hear small claims and other civil matters in the County Court.

Question 12

District Judges (MC)

Answer 12

sit in the Magistrates’ Court mainly in larger cities and can hear appeals in the Crown Court from the Magistrates’ Court.

Question 13

Who put forward the theory of separation of powers?

Answer 13

Montesquieu, a French political theorist, in the 18th century.

Question 14

What is the theory?

Answer 14

There are three primary functions of the state and that the only way to safeguard the liberty of citizens is by keeping these three functions separate.

As the power of each is exercised by independent and separate bodies, each can keep a check on the others and thus limit the amount of power wielded by any one group.
Ideally this theory requires that the individuals should not be members of more than one ‘arm of the state.’

Question 15

What are the three main arms of state identified by Montesquieu.

Answer 15

The Legislature

The Executive

The Judiciary

Question 16

What does the Legislature do?

Answer 16

This is the law-making arm of state, in our system this is Parliament.

Question 17

What does the Executive do?

Answer 17

This is the arm of state responsible for administering the law, under the British political system this is the government of the day which forms the Cabinet.

Question 18

What does the Judiciary do?

Answer 18

This arm of state is responsible for applying the law, in other words the judges.

Question 19

Explain the overlap of the roles?

Answer 19

There is an overlap between the legislature and the executive, in that the ministers forming the government also sit in Parliament and are active in the law-making process.

With the exception of the Lord Chancellor, there is very little overlap between the judiciary and the other two arm of state.

This is important as it allows the judiciary to act as a check and ensure that the executive does not overstep its constitutional powers.

This is in accordance with Montesquieu’s theory.

Question 20

Is the judiciary truly independent from the other organs of gov.

Answer 20

It is open to debate whether the judiciary is truly independent from the other organs of government.

Question 21

Independence from Legislature.

Answer 21

Judges are generally not involved in the law-making functions of Parliament.

Full-time judges are not allowed to be members of the House of Commons.

The rule is not as strict for part-time judges so that Recorders and Assistant Recorders can be Members of Parliament.

There used to be judges in the House of Lords when the Appellate Committee of the House of Lords was the final Court of Appeal.

The main reason for the creation of the Supreme Court Act 2009 was to separate the judiciary from the legislature.

The judges of the Supreme Court are not allowed to be Members of the House of Lords.

Question 22

Independence from Executive.

Answer 22

Superior judges cannot be dismissed by the government and in this way can be seen as truly independent of the government.

They can make decisions which may displease the government, without the threat of dismissal.

Judicial Independence is now guaranteed under S. 3 of the Constitutional Reform Act 2005.

This states that the Lord Chancellor, other ministers in the government and anyone with responsibility for matters relating to the judiciary or the administration of justice must uphold the continued independence of the judiciary.

The section also specifically states that the Lord Chancellor and other ministers must not seek to influence particular judicial decisions.

Question 23

How is the judiciary free from political bias?

Answer 23

This is the area in which there is most dispute over how independent the judiciary are.
Several academics and writers have discussed the independence of the judiciary against political bias.
Professor Griffith pointed out that judges are too ‘pro-establishment’ and conservative meaning they are accustomed, almost conditioned, to a certain way of thinking and acting that coincides with government ideals.

Question 24

Give a case from free political bias.

Council of Civil Service Unions v Minister for the Civil Service [1984]

Answer 24

The minister for the Conservative government withdrew the right to trade union membership from civil servants working at the intelligence headquarters in Cheltenham. The House of Lords upheld the minister’s right, and the decision was seen as anti-trade union.

Question 25

Give a case from free political bias.

Attorney-General v Guardian Newspapers Ltd. (The Spycatcher Case) [1987]

Answer 25

The House of Lords granted an interlocutory injunction to the government banning the sale of a book about the security services, on the grounds that it was in the national interest of security to do so. The injunction was granted even though the book had already been published in America.
There is, however, evidence that judges are not as pro-establishment as sometimes thought.

Question 26

Give a case from free political bias.

DPP v Hutchinson [1990]

Answer 26

A group of women camped at Greenham Common, an RAF base, to protest against nuclear missiles. Some of the women were prosecuted under a local bylaw for being on Ministry of Defence property unlawfully. The case went to the House of Lords, where the Law Lords ruled in the women’s favour, holding that the minister had exceeded his powers in framing the bylaw so as to prevent access to common land.

Question 27

Human rights and the separation of powers of the Judiciary.

Answer 27

More recently, the courts have upheld challenges by asylum seekers and by those under the Anti-Terrorism, Crime and Security Act 2001.

Also, with the Human Rights Act 1998, judges can declare an Act of Parliament is incompatible with the European Convention on Human Rights.

This puts pressure on the government to change the law.