7.

Judges English Legal System

The Role of Judges

 To resolve legal disputes in a fair and unbiased way
o Dispute between private parties
o Disputes between the state and the individual – criminal cases, judicial review
 Interpreting, Establishing, Applying the law
 Exercising judicial functions based on available evidence
o Bankruptcy order
o Protection orders
o Registration of foreign judgements for the purposes of enforcement
 Other functions as may be assigned from time to time
o Hutton Inquiry
o Grenfell Tower Inquiry (2007)
 Judges uphold the rule of law by applying the law in a completely impartial manner
(“without fear or favour”)
 In the model of separation of powers applied in the UK, the judiciary is a separate branch of
government which checks and balances the executive through its power of judicial review.
 Judges help to secure the protection of fundamental liberalities by administering the
protections of the common law. (AV Dicey’s 3rd postulate on the rule of law)

Judicial Independence
 Independent judiciary is the cornerstone of the rule of law and the separation of powers.
 Judicial Independence means the ability of judges to decide cases strictly in accordance with
the law, without fear or reprisal/retribution and without the expectation of reward/benefit.
 Section 3 of the Constitutional Reform Act 2005 commits the Lord Chancellor, all other
Ministers and everyone with responsibility for matters relating to the judiciary or the
administration of justice to: “uphold the continued independence of the judiciary”.
 Lord Chancellor and other Ministers “must not seek to influence a particular judicial decision
through any special access to the judiciary”.
 Safeguarded by
o Improvements to the judicial appointments process - Makes more independent.
o Security of tenure - Retirement age 70 — Act of Settlement 1701 —to ensure that
they cannot be removed at the whim of one of the other branches of power.
o Security of remuneration – Judges’ salaries do not need to be approved by
Parliament. Judges’ salaries are not subject to parliamentary vote
o Making judges accountable only to higher judges, not to politicians or to Parliament.
o Establishment of a transparent process governing forced removal from office (in the
case of lower court judges)
o Judges cannot be sued for anything done while acting in their judicial capacity.

https://www.judiciary.uk/about-the-judiciary/the-judiciary-the-government-and-the-constitution/
jud-acc-ind/independence/

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Superior Judges: Judges in High Court and above

Inferior Judges: Judges below High Court

***Lay Magistrates (“Justice of the Peace”) – In England, they are not judges because they are not
legally trained

The Judicial Hierarchy

Head of the judiciary in England and Wales:

Currently: Lord Chief Justice — President of the Courts of England and Wales

(***The President of the Supreme Court is the head of Supreme Court only, not the judiciary in any
of the 4 nations)

Previously: Lord Chancellor — until reforms made by Constitutional Reform Act 2005

The most senior judges in the UK are the 12 Justices of Supreme Court.

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Constitutional Reforms Act 2005

Section 3 of Constitutional Reform Act 2005 commits the Lord Chancellor, all other Ministers and
everyone with responsibility for matters relating to the judiciary or the administration of justice to
"uphold the continued independence of the judiciary"

Head of judiciary:

Pre CRA 2005 ~ Lord Chancellor

Post CRA 2005 ~ Lord Chief Justice

(***The President of the Supreme Court is head of Supreme Court only, not judiciary in any of the 4
nations)

Pre-Constitutional Reform Act 2005 Appointments

 Lord Chancellor played a central role in judicial appointments.
 Lord Chancellor --> Prime Minister --> Queen = Lord of Appeal in Ordinary (the judges of the
House of Lords) and Lord Justices of Appeal
 Lord Chancellor --> Queen = High Court Judges, Circuit Court Judges and Recorders
 There was no way to apply for these positions: one simply waited to be invited after the Lord
Chancellor's Department gathered information informally from leading barristers and judges
about potentially suitable candidates for available vacancies
 Courts and Legal Services Act 1990 — Only barristers (not solicitors) could be appointed to
the Bench

Criticism of the previous selection system

 Dominated by politicians
o LC is a full-time politician and a Cabinet Minister
 Secretive and non-transparent
o No known selection criteria
o Civil servants in Lord Chancellor's Department have great power over the candidates
were shortlisted
o Too much reliance on informal comments by members of the profession
 Discriminatory
o Favour who had a good network of contacts (family, educational, professional
contacts)
o Favour candidates from their own chambers
o Gender and Racial stereotyping and discrimination
o Bias against women, ethnic minorities and solicitors in terms of selection

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Current Appointments Process

Old system was replaced by a new one set out in CRA 2005 and Tribunals, Courts and Enforcement
Act 2007, Part 2

Current Appointment Process set out by CRA 2005

New set out in CRA 2005 to improve:

 Judicial Independence
 Separation of powers for Lord Chancellor, the House of Lords and the Supreme Court
 Judicial appointments process
 Day-to-Day leadership of the judiciary
 The way in which complaints against judges are dealt with

1. Judicial Appointments Commission (JAC)

 Set out in Schedule 12 of the CRA 2005
 Responsible for recruitment and selection of judges by identifying suitable candidates
for appointment under a transparent set of criteria
 15 Members are appointed by the Queen on the advice of the Lord Chancellor
-5 lay members, 6 members of the judiciary (including at least 1 Court of Appeal judge, 1
High Court judge, 1 Circuit judge and 1 District judge), 2 members of legal profession, 1
tribunal member, 1 lay magistrate
 Chairperson of JAC must be one of the lay members

JAC is required to evaluate candidates on merit and recommend only one candidate for each
vacancy

 Judges at High Court and above: Lord Chancellor appoints in the name of the Queen
 Judges below High Court level: Lord Chief Justice appoints on the recommendation of
the JAC
 Lord Justices and Justices of the Supreme Court: appointed by the Queen on the advice
of Prime Minister (see also the Appointments of Supreme Court Justices)
 Lord Chief Justice and Lord Chancellor cannot appoint someone who has not been
recommended by the JAC for the vacancy
 If they disagree with JAC's recommendation, they can ask for further names but reasons
must be provided

2. Judicial Appointments and Conduct Ombudsman (watchdog body)

 Set up to oversee the recruitment process
 Investigate complaints about judicial appointments
 See CRA 2005, s62

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Current Appointment Process set out by Tribunals, Courts and Enforcement Act 2007, Part 2

 Candidates must be selected on the basis of merit and must be of 'good character'
 Criteria for Appointment
o Circuit Judges and above: Minimum seven years post-qualification experience
o District Judges and below: Minimum five years post-qualification experience
o Barristers, Solicitors and Government lawyers (prosecutors and Government Legal
Service advisers) are eligible for selection as judges
o Legal executives (The Chartered Institute of Legal Executives [CILEx] members) can
be appointed to sit as judges in Country Courts, Magistrates' Courts and Tribunals
o Separate procedures under the Judicial Appointments Regulations 2013 govern the
selection of the Lord Chief Justice and the Senior President of Tribunals

Encouraging Diversity in Judicial Appointments

 s64 Constitutional Reform Act 2005
-In performing its functions, Judicial Appointments Commission must have regard to the
need to encourage diversity in the range of persons available for selection.
 Crime and Courts Act 2013
-JAC can encourage people it believes should apply for judicial posts to apply
-When there are two or more candidates of equal merit, it can appoint the one from an
ethnic minority background to increase judicial diversity
-Judges can also be appoint to the top courts on a part-time basis (facilitating the
appointment of women with child-care responsibilities)
 A day-long Assessment
-Instead of a traditional job interview, the final stage in the selection process now consists of
a day-long assessment centre which includes interview plus problem-solving, role-playing
and presentations

Key Factors in Judicial Appointments

1. Merit

2. Impartiality (including freedom from political bias)

3. Diversity

a. Ethnic

b. Gender

c. Background

d. Age

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Appointment of Supreme Court Justices

 Followed different pathway set out in the Supreme Court (Judicial Appointments) Regulation
2013
 An ad hoc (temporary) selection commission convened by the Lord Chancellor. The ad hoc
selection commission chaired by the President of the Supreme Court and must consists at
least 5 members including 1 senior judge, 1 lay person, 1 representative each from the
judicial appointments bodies of England & Wales, Scotland and Northern Ireland
 Lord Chancellor must consult the senior judges, the First Minister of Scotland, the First
Minister of Wales and the Secretary of State for Northern Ireland before selecting a
candidate. Then, let Prime Minister to present to the Queen for appointment.

Termination of a Judge's Appointment

1. Retirement
 Age of retirement - 70 (Act of Settlement 1701)
2. Removal from office
 Superior judges (High Court and above)
i. Protected by the Act of Settlement 1701, which provides that they can only
be removed from office by the Queen on the petition of both House of
Parliament.
ii. This procedure has not been used since 1830
 Inferior judges (below High Court - Circuit Judges & District Judges)
i. Can be dismissed by the Lord Chancellor under the Courts Act 1971.
ii. Can be done on the grounds of 'inability' or 'misbehavior'. Examined by
Judicial Conduct and Investigation Offices (JCIO) (previously Office of Judicial
Complaints)
iii. Dismissal must follow established procedures: s108(1) Constitutional Reform
Act 2005.
iv. The Lord Chief Justice must agree to the removal
 Non-renewal of part-time service
i. In the case of part-time judges (Recorders and etc) they can simply not be
renewed
 Removal due to infirmity
i. Lord Chancellor can remove a judge who is disabled by permanent infirmity
from effectively performing his or her duties and who is unable to resign the
post.

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3. Disciplinary measures resulting in suspension

 Constitutional Reform Act 2005 s108 provides for a formal disciplinary procedure for
judges
 If the procedures is invoked, the Lord Chief Justice may give a judicial office holder
"formal advice, or a formal warning or reprimand for disciplinary purposes"
 The Office of Judicial Complaints (today the Judicial Conduct and Investigate Office)
i. Established in 2006
ii. Receive and Investigate complaints of misconduct by judges
iii. If the investigation reveals grounds for further action, the Lord Chief Justice
and Lord Chancellor can suspend the judge to maintain public confidence in
the judiciary
 A judge can be suspended from judicial office for any period if they are subject to
criminal proceedings or have been convicted.
 Judges' conduct can be censured in Parliament or can be criticised by superior courts
if they have not discharged their duties properly.
 The Judicial Appointments and Conduct Ombudsman
i. Receive and Investigate complaints about judicial conduct
4. Resignation

Issue regarding the composition of the judiciary

 Imbalance in background, ethnic origin, gender and age
 Insufficient training given the volume and difficulty of cases
 Alleged political bias
 Lack of specialisation
 Shortage of judicial time and resources