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THE JUDICIARY

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					THE JUDICIARY

    Unit 5
    Why should the judiciary be
     politically independent?
• Cases involving government power should be
  free of influence by government;
• Citizens need to feel they will have a fair
  hearing;
• Politically neutral courts are free of external
  pressure;
• The judiciary safeguards against extensions of
  state power.
 How independent are judges from
  Parliament and the executive?
A number of factors are used to
  suggest that the judiciary IS
  independent of Parliament and the
  executive:
• It is argued that pay and conditions
  of employment keep the judiciary
  free from corruption and political
  pressure.
 How independent are judges from
  Parliament and the executive?
• Judges have security of tenure
• Appointments are for life (retiring
  age 75), quam diu se bene gesserint
  (subject to good behaviour).
• Salary is not paid directly by the
  govt.
 How independent are judges from
  Parliament and the executive?
The conduct of judges should be free
 from criticism by Parliament, except
 on the rare occasion when there is a
 substantive motion for an address
 for removal from office. In early the
 1990s, just over 100 MPs signed a
 Commons motion after a judge had
 made a controversial decision – but
 all the MPs received in return was a
 telling off from the Lord Chancellor.
  How independent are judges from
   Parliament and the executive?
Ministers have increasingly found themselves the
  subject of ‘judicial review’, where the judiciary
  declares that the executive has exceeded its
  powers.
• Kenneth Baker: was found in contempt of
  Court for failure to comply with court order
  in asylum case
• Michael Howard: extension of sentences
  for Bulger killers unlawful
• Jack Straw: ban on journalists
  investigating miscarriages of justice
  overturned
How independent are judges from
 Parliament and the executive?
Since the Human Rights Act (1998)
came into force judges have been
unafraid to declare government
policy incompatible with the
European Convention on Human
Rights, particularly in relation to
terrorism.
How independent are judges from
 Parliament and the executive?
In 2004 the Law Lords ruled that
indefinite detention without trial for
terrorist suspect (under the Anti-
Terrorism Crime and Security Act
2001) was in breach of Article 5 and
Article 14 of the ECHR.
  How independent are judges from
   Parliament and the executive?
HOWEVER, a number of factors suggest that the
  judiciary is NOT so independent:
• The most senior judge in England and Wales,
  the Lord Chancellor, also holds office in the
  executive. He is also Speaker in the House of
  Lords.
• Appointment procedures are secretive and
  draw from a very narrow base (the Inns of
  Court)
 How independent are judges from
  Parliament and the executive?
• Several judiciary headed inquiries have
  been considered too favourable to the
  government, e.g. the Scott Inquiry (Arms
  to Iraq) and the Hutton Inquiry (Death of
  David Kelly); the latter was popularly
  believed to be a whitewash.
 How independent are judges from
  Parliament and the executive?
• Although the judiciary occasionally rules
  against the government, it rules in favour
  of the government in a larger number of
  cases (a point admitted by ex-Chiref
  Justice Lord Woolf)
    Recent Government Reform
            Proposals
A proposed Constitutional Reform Act was
  initially proposed in 2003, and passed in 2005.
  It addressed four key areas:
• Judicial independence – Ministers required by
  law to uphold judicial independence;
• Reform of Lord Chancellor’s role – his judicial
  functions to be transferred to the Lord Chief
  Justice
   Recent Government Reform
           Proposals
• Supreme Court – there will be a new,
  independent Supreme Court, separate
  from the House of Lords;
• Judicial Appointments Commission – to be
  an independent body, recommending
  candidates to the Secretary of State for
  Constitutional Affairs (who is also the
  Lord Chancellor).

				
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