Judicial Independence

The judiciary, in Uk are that group of people to apply the

law before of the land to the facts of the cases before them.
Shortly, they are a group of judges. Judiciary incorporate a fairly
broad range of different types of judges, but the basic function
is the same at all levels, that is judges are there to adjudicate
on disputes in a fair, unbiased way, applying the legal rules of
this country. Another important role played by the judiciary is
that of statutory interpretation. Whilst the meaning of law in a
statute should be clear and explicit, this is not always achieved.
Many cases come before the courts because there is a dispute
over the meaning of a word in a statute. Besides their basic
function, the work that a judge does depends on the level of
the court in which he or she works. While, much has been
written about judicial independence both in its institutional and
individual aspects. Judicial independence is not the private right
of judges, but the foundation of judicial impartiality and is for
the benefit of the public. It is a cornerstone of our system of
government in a democratic society and a safeguard of the
freedom and rights of the citizen under the rule of law.
Independence of the judiciary refers to the necessary individual
and collective or institutional independence required for
impartial decisions and decision making. Judicial independence
thus characterises both a state of mind and a set of institutional
and operational arrangements.
In order for the decision of judiciary to be respected and
obeyed, the judiciary must be impartial. To be impartial, the
judiciary must be independent. To be independent, the judiciary
must be free from interference, influence or pressure. Much has
been written about judicial independence both in its
institutional and individual aspects. Firstly, in order to be
independence of the judiciary, the judges are generally not
involved in the law making of Parliament. Full-time judges are
not allowed to be members of House of Commons. Besides, the
creation of Supreme Court was to separate the judiciary from
legislature. There used to be judges in House of Lords when the
appellate committee of the House of Lords was the final court
of Appeal. For now, judges of Supreme Court are not allowed to
be the members of House of Lords. From the perspective of

being independent from the executive, superior judges cannot

be dismissed by the government and in this way they can truly
be said to be independent of the government. They can make
decisions which may displease the government, without the
threat of dismissal. These are the individual independence of
judiciary.
To see whether judicial independence had been truly
secured, we can look into the power of Lord Chancellor before
parliament passed Constitutional reform act 2005. Until
2005 the head of the judiciary was a Cabinet minister, the Lord
Chancellor. He was responsible for the judicial appointments
system, and appointed the judiciary; he determined their pay
and pensions; he was responsible for investigating complaints
against judges, and imposing discipline. In an extraordinary
breach of separation of powers, he could also sit as a judge in
the highest court; and equally extraordinarily, he presided over
the second chamber of Parliament, the House of Lords. The
judiciary accepted this state of affairs because they liked the
head of the judiciary being a senior member of the
government, who was able to defend their interests in Cabinet.
The Concordat provided the basis for the Constitutional Reform
Act 2005. The Act removed the roles of the Lord Chancellor as
head of the judiciary and Speaker of the House of Lords, but
otherwise left the office in being. It set out the functions to be
transferred to the Lord Chief Justice as head of the judiciary,
implementing the agreement struck in the Concordat. The Act
came into force in 2006, together with the independent Judicial
Appointments Commission created by the Act. The new politics
are different in every respect. The first difference is that they
are more formal. The greater separation of powers introduced
by the Constitutional Reform Act 2005 required more formal
structures and processes to handle the relationships between
more separate branches of government. Some of these
structures and processes were created by the Constitutional
Reform Act itself; some have emerged subsequently.
In terms of more formal structures, we now have the
Judicial Appointments Commission. We now can see how it
provide the judicial independence through this Judicial
Appointments Commission. The method by which the judges

were appointed prior to 2006 received much more

condemnation as it was seen as a secretive and discriminatory
process that was dominated by politicians. The Lord Chancellor
used to play a major role in selection and appointment of the
judiciary. Judges were to be appointed by the Queen who was
advised by the Lord Chancellor. The first criticism is it being
secretive, it was found that judicial appointment system often
favoured those with a good network of contacts over those who
had potential to become an excellent judge. It seemed that the
odd adage its not what you know but who you know was
very much in effect. Next, the appointment process could be
discriminatory. Research undertaken by Association of women
Barrister emphasised that there was a monopoly on the market
held by a small niche of the legal world and this have the effect
of ethnic minorities and women being bypassed. The fact Lord
Chancellor and Prime Minister oversaw the process was the
main focus of the criticism; that the politicians dominated the
selection process. At the time, Lord Chancellor was a member
of the three states, therefore there was a possibility that the
position within the executive could potentially be seen to have
an impact on the candidates chosen for the judicial office. The
fact that the Prime Minister had to appointments into higher
judicial offices could also be viewed as an interference with
independence of the judiciary.
After 2006, Judicial Appointment Commission took over
the recruitment process of the lower ranks of the judiciary and
it set out its remit was to select candidates for the judicial
office. We do so on merit, through fair and open competition,
from the widest range of eligible candidates. The JAC
comprised of 15 commissioners who are drawn from the
judiciary, legal profession, tribunals, lay magistrate and lay
public. The commission will decide the selection process to be
used. It will then use that process to select a candidate and
report that selection to Lord Chancellor. Under s29 of
Constitutional Reform Act 2005, Lord Chancellor can reject that
candidate and ask the commission to reconsider. However, Lord
Chancellor must give a written reason for rejecting a candidate
or asking the commission to reconsider. Once Lord Chancellor
has accepted the candidate, he then notifies the prime minister

and prime minister must recommend to the queen that she

appoints that person. Prime Minister cannot recommended
another person for appointment. This is clearly show that the
Constitutional Reform Act 2005 have improved the judicial
independence.
The big advance for judicial independence has been the
creation of the new Supreme Court separate from the House of
Lords as the highest court in Uk in 2009. The Judicial
Committee of the Privy Council remains as distinct entity, but
follows the Supreme Court to its new location. This means that
Supreme Court will separate from the House of Lords with its
own independent appointment system, its own staff and budget
and its own building. By removing judges from the House of
Lords, the Supreme Court swept away the constitutional
conventions that had grown up to protect decision making for
judges working within the institution of Parliament. Many of
those conventions are, of course, no longer needed given that
the judges now comfortably work within their own institution.
The creation of the Supreme Court thus presents an opportunity
for the growth of new informal constraints to govern the
judiciary's new institutional relationship with the other branches
of government. Supreme Court embodies a particular
conception of judicial independence. This conception goes
beyond protecting judicial decision-making from direct
interference by the executive and the legislature: the Supreme
Court now interacts with the other branches of government as
a distinct institution instead of working alongside them as a
component of Parliament. These institutional arrangements
reflect a new and much broader conception of judicial
independence. The new judicial independence demands
institutional autonomy and increasingly formal interactions
between the judiciary on the one hand and the executive and
legislative branches on the other hand.
Furthermore, following the Constitutional Reform 2005,
two new judicial institution were established that are Judicial
Office and Judicial College and both which operate as
independent judicial bodies within the Judicial Office for
England and Wales and are funded directly by the Ministry of
Justice. The judicial office was set up to support the judiciary in

discharging in responsibilities under the Constitutional Reform

Act 2005. While the Judicial College ensures the high-quality
training is provided to enable judicial office-holder to carry their
duties effectively and in way preserve a judicial independence
and support public confidence in the justice system. It also
provides training and judges to all-part time and full time
judges in judicial skills. An essential element of philosophy of
college is that the training is provided by judges to judges. This
can improve the judicial independence as the senior judges
have the experience in how to achieve judicial independence.
Furthermore, besides the replacement of House of Lords
by Supreme Court, there are several ways in which the judges
are protected from outside pressure when exercising their
judicial functions which is called institutional independence.
Firstly, the judges are given certain degree of financial
independence, as judicial salaries are paid out of the
consolidated fund so that payment is made without the need
for Parliaments authorisation. Judges also have immunity from
being sued for actions taken or decisions made in the course of
their judicial duties. Under the Judicial Pension and
Retirement Act1993, all judges must retire on their 70th
birthday although there are some authorisation can be given
for a judge to continue beyond that age. Besides, generally,
judges are safeguard from dismissal under the principle of
security of tenure during good behaviour as set out under the
Senior Court Act 1981. This means that judges will only be
removed from office if they misbehave badly. The principle
provides security in a judicial position and ensures judicial
independence, as the Government cannot simply remove
judges if they make a ruling that the establishment does not
agree with it. It would be a sorry state of affairs if judges
refused to make ruling on the basis they may be sacked. The
Heads of Division, Justice of the Supreme Court, Justices of
Appeal and high court judges are extremely well protected in
their tenure as they can only formally remove by Queen, after
the remove has received approval by way of an affirmative vote
on the resolution in both House of Parliament. The Lord
Chancellor can, under Court Act 1971, dismiss inferior judges
on the grounds of incapacity or misbehaviour. Under the

Constitutional Reform Act 2005, Lord Chancellor must comply

with the set procedures and have consent of Lord Chief Justice
before they can remove any judges from office. In addition,
under CRA 2005, Lord Chief Justice have the power to suspend
a person from judicial office if they are subject to a criminal
proceedings or have been convicted, but under the agreement
of Lord Chancellor.
As a conclusion, judicial independence plays a very major
role in British politics as it is fundamental to the British
Constitution. The society of British mostly depends on the
decisions upheld within the courts. It is vital for judges of any
court who practise judicial functions and duties to administer
and govern justice impartially and not for any individual
benefits. In order to make sure that the well-functioning of the
judiciary organs, certain conditions had been set out which are
a judge can never participated in any case in which he belongs
an interest of any nature. Moreover, Constitutional Reform Act
2005 has make a great improvement in judicial independence
through the replacement of House of Lords by Supreme Court,
reduce the authority of Lord Chancellor and the establishment
of Judicial Office and Judicial College. Finally, the appointment
of Judiciary through the Judicial Appointment Commission and
the security of tenure during good behaviour which is under the
senior court act 1981 have also established the judicial
independence.