Use LEFT and RIGHT arrow keys to navigate between flashcards;
Use UP and DOWN arrow keys to flip the card;
H to show hint;
A reads text to speech;
18 Cards in this Set
- Front
- Back
|
What is the principle of judicial independence? |
The principal that the actions and decisions of judges should not be influenced by pressure from other branches of government |
|
|
The principal of judicial independence is one of the key parts of the constitution. What is it based on? |
The separation of powers, as it holds that there should be a strict separation between the judiciary and other branches of government |
|
|
How can judges therefore apply the law? |
As their own experience and legal training dictates, rather than as ministers, civil servants or parliamentarians would wish |
|
|
As such, what is judicial independence a vital guarentee of? |
the rule of law. Law cannot act as a constraint on government if the executive and Parliament can influence judges in how they interpret and apply the law. |
|
|
What are the 8 ways in which the independence of the judiciary 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 |
|
|
How does the the appointment process help maintain judicial indpendence? |
The process through which judges are appointed is meant to involve little political interference, otherwise judges may be selected on the basis of their sympathy for the government of the day. When judges were appointed by the PM and the Lord Chancellor, it was very difficult to rule out the influence of political considerations. But, the establishment of the Judicial Appointments Commission has introduced greater independence to this process |
|
|
How does the security of tenure help maintain judicial independence? |
Once judges are appointed, they cannot be sacked: they remain in office until their retirement age of 70. The possibility of removal or demotion cannot therefore be used to affect their decision-making. Senior judges can only be removed by an address of both houses of Parliament, something that hasn't happened since 1830. Junior judges enjoy security of tenure during 'good behaviour' and can be removed by the Lord Chancellor if, for instance, they are found guilty of a criminal offence |
|
|
How does pay help maintain judicial independence? |
The pay and rewards of judges are safeguarded from political influence. Judges are paid out of the Consolidated Fund, which is not subject to annual review by the HOC and their salaries and other forms of remuneration are decided by an independent pay review body. BUT this didn't prevent a freeze on judicial salaries and adverse changes to judicial pensions being introduced during 2010-15 Parliament |
|
|
How does freedom from criticism help maintain judicial independence? |
There are constitutional conventions that forbid MP's and peers, and therefore also ministers, from putting pressure on judges by criticizing court rulings and judicial decisions in Parliament. The 'sub judice' rule forbids people people, including politicians, from commenting on cases that are currently being considered |
|
|
How does the independent legal profession help maintain judicial independence? |
Judges are appointed from the ranks of lawyers who belong to an autonomous legal profession. Standard within the profession are regulated by the Law Society, not by government. Lawyers and judges are therefore not trained by the state, as in some other European countries |
|
|
How does the role of the Lord Chancellor help maintain judicial independence? |
The Lord Chancellor was once a major threat to judicial independence, being both the head of judiciary and a member of the cabinet. Since 2006, the former role of has been transferred to the Lord Chief Justice, and the Lord Chancellor influence over judicial appointments has been much reduced. Under the Constitutional Reform Act 2005, the Lord Chancellor has to swear an oath to defend the independence of the judiciary |
|
|
How does the creation of the Supreme court help maintain judicial independence? |
The CRA also provided for the replacement of the HOL as the highest court of appeal in the UK, by the Supreme Court, which was established in 2009. The supreme court signficantly strengthens judicial independence as it breaks the link between the courts and Parliament |
|
|
How does greater institutional autonomy help maintain judicial independence? |
The judiciary has become a more independent and self-governing branch of government. As head of the judiciary, the Lord Chief Justice makes decisions which were previously made by the Lord Chancellor and now, for instance, appoints all circuit and district judges, and represents the views of the judiciary to Parliament, the government and the public |
|
|
Traditionally, what did the main focus of concern over judicial independence focus on? |
the appointment process. Whilst this was controlled by the PM and the Lord Chancellor, and so long as the Lord Chancellor's office fused the roles of head of the judiciary and cabinet minister, judicial independence always appeared to be a constitutional fiction |
|
|
How has this concern been addressed? |
through the establishment of the Judicial Appointments Commission. Despite this, some judges have expressed concerns about the changing role of the Lord Chancellor, and the fact that some recent appointees have had limited or no legal background, and therefore little ability to speak with authority on legal and judicial matters in cabinet or elsewhere |
|
|
What is the second concern about judicial independence? |
the growing willingness of ministers to publicly criticize the courts. This has particularly applied in the case of successive home secretaries |
|
|
What are some examples of this? |
2003: David Blunkett condemned the release of 9 Afghan hijackers 2005: Charles Clarke criticized the release of terrorist suspects from Belmarsh prison 2010: Theresa May criticized the refusal to deport 2 terrorist suspects to Pakistan, despite it having been acknowledged that they had links to al-Qaeda. |
|
|
But, has judges been cowed by this public criticism? |
There is little evidence of this. If anything, evidence of greater judicial activism in recent years suggests a determination on the part of judges to develop their own view of the 'proper' application of law. For example, Lord Neuberger, the president of the Supreme Court, attacked Theresa May in 2013 for criticizing judges over the failure to deport foreign criminals, saying her views were 'inappropriate, unhelpful and wrong'. Increasingly common public clashes between ministers and judges therefore provide evidence of the health of judicial independence |
