English Legal System Lecture 9
Christopher Rogers
Track/Slide 1
In this lecture on the English Legal system, we are going to look at the
judiciary. We are going to answer the question “Who are the judges?”, “What
different levels of the judiciary are there?”, “What are the qualifications for
appointment to the judiciary?”. We are going to also look at criticism of the
background of most judges and the difference that this makes to the justice
system, and we are also going to compare and contrast the appointment of
judges in England and Wales with the way in which other countries appoint
their judges, both in Europe and in the wider world.
Track/Slide 2
The aims of this lecture can therefore be summarised as follows. First to
introduce you to the different levels of the judiciary in England and Wales and
which courts they sit in. Second, to consider the qualifications for judicial
appointment and the criteria and method used in the selection of judges.
Third, to look at the reforms proposed by the government in relation to the
judiciary and to critically assess those reforms. Fourth, to look at how other
jurisdictions in Europe and beyond appoint their judges. Fifth, to look at the
criticism of the current composition of the bench and critically appraise such
criticisms as have been made of it, and sixth, to look at judicial independence
and what this means.
Track/Slide 3
The outcomes for this lecture are as follows. You should be able to do the
following by the end of the lecture. First, name the main judges in the
hierarchy within England and Wales. Second, state the qualifications for
appointment to the bench and the criteria which is used in assessing judges.
Third, describe the reforms that the government is proposing to the
appointment of the judiciary and the merits of those reforms. Fourth, to
describe how other jurisdictions appoint judges and the merits of such an
approach as they take. Fifth, to critically consider the composition of the
bench and whether this makes any difference to the way in which they decide
cases and, sixth, to state what is meant by judicial independence and how this
is affected by the government’s reforms.
Track/Slide 4
We’re now going on to look at the different judges and the courts in which
they sit, the different levels of the judicial hierarchy. Before looking at the
different levels of judges in England and Wales, it’s important first of all to look
at particular and special offices which exist, which fall outside the strict
hierarchy. The first of these is the position of Lord Chancellor. This is a very
ancient office, which is as old, nearly as old as the Crown in England and
Wales. The Lord Chancellor is the head of the judiciary who sits in the
Cabinet as part of the Executive. He was also traditionally Speaker of the
House of Lords as well as being head of the judiciary. He is also president of
the Chancery Division and is formally the most senior judge in the Court of
Appeal. The present Lord Chancellor is Lord Falconer, who is also Secretary
of State for Constitutional Affairs.
The second most important judge in England and Wales is the Lord Chief
Justice. He is president of the Criminal Division of the Court of Appeal and the
senior judge in the Queen’s Bench Division of the High Court. The present
holder of the office of Lord Chief Justice is Lord Wolf. The Master of the Rolls,
so called because traditionally he would keep the roll of solicitors, is president
of the Civil Division of the Court of Appeal. The present incumbent of this role
is Lord Philips MR. The heads of division of the High Court of Justice
obviously take responsibility for those divisions of the court in which they sit.
These are as follows. The Vice Chancellor who heads up the Chancery
Division. Although the Lord Chancellor is the nominal head of this division, the
organisation on a day-to-day basis falls to the Vice Chancellor. The president
of the Family Division of the High Court of Justice, and as we’ve already seen,
the Queen’s Bench Division, is headed up by the Lord Chief Justice. The final
judicial office to be aware of at this stage is the senior presiding judge for
England and Wales. This office was created by the Courts and Legal Services
Act 1990 and required the separate Crown Court circuits should operate
under the authority of 2 presiding judges who are drawn from the High Court
of Justice.
Track/Slide 5
There are numerous reforms under the Constitutional Reform Bill 2004 to
these traditional offices of the judiciary. In particular, although no longer to be
abolished, the Lord Chancellor is to use his role as head of the judiciary to be
replaced by the president of the courts of England and Wales. This president
of the courts is assumed to be the Lord Chief Justice and he will have
responsibility for ensuring that the courts have enough resources to carry out
their role and also liaise with government. There will be a president of the
Supreme Court and deputy president of the Supreme Court will be the most
senior judge in the new Supreme Court to replace the House of Lords. There
will also be heads and deputy heads of criminal justice, civil justice and family
justice, who will have overall responsibility for those areas instead of the
current heads of division of the High Court of Justice.
Track/Slide 6
Having dealt with the judicial office holders within the courts system, it’s now
important to go on to consider the different levels of the judiciary as they exist
in the ordinary courts. The best way to think about them, at least at the higher
end of the hierarchy, is by the court in which they sit. So starting with the
House of Lords, Lords of Appeal in Ordinary, to give them their official title, sit
here. They are commonly referred to in the press as the Law Lords and there
are 12 in total who are appointed under the Appellate Jurisdiction Act 1876.
Below the House of Lords in the Court of Appeal sit the Lord Justices of
Appeal. AT the moment there are 38 of these. They are designated in law
reports as, for example, Lord Rose LJ, the LJ representing the Lord Justice,
referred to as Lord Justice Rose.
In the High Court there are 107 judges in total sitting there and on
appointment they receive a knighthood. They are referred to in court however
as My Lord or My Lady. High Court judges are also sometimes known as
puny judges from the Norman French.
At the lower levels it’s no longer appropriate to think in terms of courts. The
three judges you’ll encounter in the Crown Court, County Courts and also
you’ll come across District Judges in the context of Magistrates Courts but the
three main remaining judges, the three judges to deal with here are Circuit
Judges, Recorders and District Judges. Circuit Judges sit in the Crown Court
and the County Court and, as we have already seen, that’s part of the
Supreme Court of England and Wales. Recorders are part-time judges sitting
in the Crown Court or the County Courts and then District Judges have a wide
jurisdiction as well, sitting in both the Crown Court and the County Court.
Track/Slide 7
We now go on to look at the qualifications for judicial appointment. The first
thing to recognize here is that this differs according to the rank within the
judiciary. Mostly the qualifications for judicial appointments are contained in
the Courts and Legal Services Act 1990. We start here with District Judges.
You’ll see that they require what is termed a 7 year general qualification.
Recorders require a 10 year Crown Court or County Court qualification and
for Circuit judges there are several possibilities in terms of qualifications for
appointment. First that they have previously been a Recorder. One of the
advantages of having part-time Recorders is to try someone out in a judicial
role before they are finally appointed. Second, that they possess a ten year
Crown or County Court qualification in the same way as with a Recorder, And
third, that they have previously held certain judicial offices. Those judicial
offices may be chairmen of tribunals or something along those lines which has
given them a background for appointment to the judiciary.
Track/Slide 8
If we move up to High Court judges, you’ll see that in order to be appointed a
High Court judge, the first possibility is that previously you have been a Circuit
judge for 2 years, therefore you’ve had judicial experience, although you will
have had to pass through the requirements that we looked at before in
relation to Circuit judges, or secondly that you have a 10 year High Court
qualification. Deputy High Court judges, which are used increasingly, must
possess the same qualifications as High Court judges. Deputies have similar
powers to the High Court judges themselves, although this varies from statute
to statute and provisions of law in different areas, but in general a deputy is
just that, deputizing for the High Court Judge and they have to possess the
same qualifications.
For a Lord Justice of Appeal, who sits in the Court of Appeal, the first
qualification for appointment is that they’ve previously been a High Court
Judge and that is the normal route by which you would be appointed to the
Court of Appeal, or secondly that they have a 10 year High Court qualification
in the same way that High Court judges are appointed on that basis, having
gained experience before the High Court themselves.
Track/Slide 9
Finally, in order to be appointed to the House of Lords as a Lord of Appeal in
Ordinary, the candidate must either first have previously held high judicial
office for 2 years or second possesses a Supreme Court qualification for 15
years. As can be seen from the foregoing, there’s a heavy bias in relation to
the appointment of the judiciary for court work as part of the qualifications
required.
Track/Slide 10
We now need to look at the Courts and Legal Services Act 1990 in order to
understand fully the different terms that have been used in relation to
qualifications for judicial appointment. This Act was very controversial
because it changed for the first time traditional monopolies that the two
branches of the professions had over certain types of legal work. For
example, it abolished the solicitors’ monopoly of conveyancing work by
allowing for the creation of licensed conveyancers. The Act allowed solicitors
as well to gain higher rights in the courts and hence qualify for appointment to
the Bench for the first time. If you have a look a Slapper and Kelly’s book at
chapters 11.7, you’ll see how the system of training for rights of audience
changed between 1990 and the passing of this Act and 1999 and the passing
of the Access to Justice Act. The aim of both of these Acts was to widen the
possibility for solicitors to take up rights of audience and hence ultimately to
qualify for appointment to the Bench. As will be seen when we look at the
legal profession in detail in another lecture, a lot of solicitors haven’t actually
taken advantage of these procedures for many reasons and we’ll look at that
in detail there. Essentially obviously the different levels of qualification depend
on the training that you’ve undertaken and for the higher courts you need to
have a particular qualification within that court in order to be appointed to the
Bench there.
Track/Slide 11
We are now going on to look at the appointment procedure in more detail and
in particular the selection criteria which are used for selecting judges. The
Department of Constitutional Affairs have guidance information for candidates
applying for the post of Circuit Judges. This lists the selection criteria as
follows. First, legal knowledge, obviously very important. It goes without
saying that judges must have a knowledge of the law, both in substantive
terms and also in procedural and evidential terms because of the nature of the
court system. Second, they must have intellectual and analytical ability. Third,
they must have sound judgement. Fourth, they must have decisiveness, be
able to act decisively. Fifth, they must have communication and listening skills
in order to deal with the advocates in the case and also with the witnesses
and jurors, ordinary members of the public which are involved in the system.
They must have authority and case management skills. We’ll explore the
concept of authority in relation to judges a little later in the lecture. They must
have integrity and independence, obviously vital characteristics for a judge.
Independence in its strict legal meaning is something that we’ll spend some
time at the end of this lecture looking at.
They must have fairness and impartiality. One may question whether the
adversarial system in training people to present their client’s case actually
meets this requirement. They must have understanding of people and society.
We are going to spend some time looking at how the background of the
judges may not actually meet up to this requirement. They must have
courtesy and finally they must have commitment, conscientiousness and
diligence.
In terms of the actual procedure for selection for Circuit Judge and below, this
is done openly by an application when a position’s vacancies are advertised,
often in the national press such as the Times’ law supplement and then there
is a procedure by which candidates are assessed from names that they put
forward as referees, three members of the judiciary or the legal profession,
who are then contacted by the Lord Chancellor and his views are sought as to
the suitability of the candidate. At the higher levels the method of appointment
changes slightly insofar as people can be invited to join the Bench. Many
judges are in favour of retaining this position because they feel that otherwise
these candidates may not actually apply.
Track/Slide 12
Method of appointment is a topical area at the moment because of the
reforms which are on their way through Parliament, aimed at reforming the
current method of appointment, which has been subjected to a lot of criticism.
Currently, to take a broad brush approach, judges are appointed by the
Queen, which is obviously largely a formality, on the advice of the Prime
Minister for judges higher up in the hierarchy, or the Lord Chancellor for those
lower down. Before appointing a judge, the Lord Chancellor will engage in
what are described as secret soundings. He will consult with the judiciary and
senior practitioners, members perhaps of the candidate’s chambers to see if
that candidate is suitable for judicial office.
Much criticism of this method of appointment is centred on the idea that it has
given rise to injustice for candidates and tends to perpetuate the judiciary as
an exclusive group. If we have a look at Eddy and Derbyshire on the English
Legal System – you should be able to find the section on the judges – you will
see that there have been sociological studies undertaken, which demonstrate
that if one group comes from predominantly a certain background, then when
choosing new members of that group, that work force, then they will tend to
choose people like themselves.
Track/Slide 13
We are now moving on to analysis of the composition of the judiciary, who the
judges are in the wider sense of where they were educated, what their social
background is etc. There are different ways to look at the composition of the
judiciary as it now stands. These may be summarised as follows, although the
list is not meant to be exhaustive. We are going to have a look at the judiciary
in the context of their gender background, whether they are male or female.
The ethnic background of the judiciary, whether they come from ethnic
minorities within the United Kingdom, or whether they come exclusively from
one particular ethnic background. We are going to have a look at their social
class, although this is a problematic term. We are going to have a look at how
this interacts in particular with the educational background of the judges,
where they went to school and to university and also their professional
background in relation to which branch of the legal profession they trained in.
Track/Slide 14
So how do the judges measure up against this background? Well if we take
gender as a first example, it can be stated quite clearly that most judges are
male. The first female judge to be appointed to the House of Lords was
Baroness Hale of Richmond and that was only made last November. The
appointment was made in November. She actually became a member of the
House in January. Further down the scale of the appointments, at the level of
District Judge for example, there are more women. If we have a look at the
figures from the Lord Chancellor’s Departmental of Constitutional Affairs
website, we see that 21% of District Judges are women and 28.6% or
Recorders in training are women. So there is more representation further
down, although it’s hard to evaluate without stating ideally what you think the
composition of the judiciary should be in gender terms, whether that is
adequate or not.
Have a think as to any reasons why you think the ratio of men to women in
the judiciary is skewed in this manner. In particular consider the appointment
and selection procedure that we looked at earlier and also changes that have
occurred in society since many of the judges were at university.
Track/Slide 15
If we go on to look at the ethnic background of most judges, see first of all that
ethnic minorities are not represented in the House of Lords, Court of Appeal
and until recently in the High Court. There are no black or Asian judges in any
of these courts. The proportion of judges at the lower level of the judiciary who
are from ethnic minorities vary, but it can see in percentage terms that they
are generally under-represented. If we have a look at the level of Circuit
Judge for example, you can see that the total from ethnic minorities according
to the Department of Constitutional Affairs website is 1.42%, very small. In
Recorders in training, the number rises to 12% so the picture is much better
there in terms of representation, although the full-time Recorders, again it falls
to 4.2%.
Track/Slide 16
We are going to look at social class, educational and professional background
together. These categories can be dealt with together as there is a clear link
between them. Most judges, for example, are drawn from the upper-middle
class. Either they were born into that class or they have become a member of
that class by virtue of being appointed to a judgeship. Most judges as well
were educated at one of the elite public schools such as Eton, Winchester,
Harrow, Rugby etc. Obviously there’s a clear link here between the fact that
their parents were relatively wealthy and the fact that they went to these
public schools where the fees are quite considerable. If you want to know a
little bit more about the proportion of judges who went to these schools, have
a look at Professor Griffith’s book The politics of the judiciary, which looks at
this aspect of the background of the judges.
After they’ve been to the public schools, most judges were then educated at
Oxford or Cambridge, two elite universities. The proportion of judges in the
higher level of the hierarchy who went to these universities stands at
something between 70 and 80% so quite clear bias there. Some people would
argue that because they went to these public schools as well, this gave them
a better chance of getting into Oxford or Cambridge and therefore again you
see a link between their social class and their educational background
although more tenuous here than in respect of the public schools.
Finally the vast majority of judges trained as barristers. All of the house of
Lords, for example, were barristers, including Lady Justice Hale who was
appointed last year, and so there’s a clear bias there as against solicitors.
Track/Slide 17
Let us now consider the link between the social class, education and
professional background of the judiciary a little more closely by posing the
question “What is the link between them?”. Well, first of all some people would
posit that secret soundings, the old boy’s network, is responsible for the
composition of the judiciary being skewed in this way. A commentator called
Gavin Dury who coined the phrase that the judiciary in this country are
manifestly skewed would be an example of one commentator. So the theory
runs that these people have been moving in the same circles when they were
young at prep school and then onward to public school and then finally to
university and then in professional life at the Bar and therefore may tend to try
and choose people from the same background.
Another reason which is more tangible is the expense of training. We’ve
already touched on the fact that fees from an elite school are very high,
something in the region of £14,000 per annum to send your child there.
Oxford and Cambridge admit the same proportion of public school and state
school children. This is despite the fact that obviously the state sector makes
up more of those who are taking A Levels than the public school sector does.
The third reason is that the Bar Vocational Course is very expensive, so once
having completed the law degree, there is then this compulsory one year of
training, which can raise from around £8,000 to £12,000, depending on the
institution where you study and if you have private wealth, then that gives you
an advantage in studying the course. Pupillage may be under funded, so after
the Bar Vocational Course in order to train as a barrister, you have to
complete a year of pupillage. Although an award of £10,000 was introduced
last year for all pupillages, generally it’s difficult to get them and some people
would say that you have advantages if you come from a certain background in
getting those pupillages.
And finally, barristers are self-employed so once you’ve completed pupillage,
you have to have enough briefs coming in in order to pay your outgoings, pay
rent on chambers, that type of thing, which means that if you have a private
source of wealth, you’re in a better advantage to survive the first few years of
practice. So arguably there is a clear link between the social class,
educational and professional background of the judiciary.
Track/Slide 18
Trying to determine what difference a more representative judiciary would
make is more difficult. Obviously there is an argument to begin with that
people might feel alienated from judges if they don’t reflect the background of
the majority of people in the country who come before the courts in one way
or another involved in the administration of justice. If you have a look at some
articles by some commentators, first of all you’ve got listed on the slide Bertha
Wilson, ‘Will women judges really make a difference?’ (1990) 28(3) Osgoode
Hall LJ 507. In that article she argues that there’s overwhelming evidence that
gender-based mis-biases and stereotypes are deeply embedded in the
attitudes of many male judges, as well as in the law itself. Researchers have
concluded that gender difference has been a significant factor in judicial
decision making, particularly in the area of tort law, criminal law and family
law. Bertha Wilson was the first female judge appointed to the Canadian
Supreme Court in 1982.
Brenda Hale in the second reference that you have on the slide ‘Equality and
the Judiciary’ [2001] Public Law Journal 489 has written that a generally more
diverse Bench with a wider range of backgrounds, experiences and
perspectives on life might well be expected to bring about some collective
changes in empathy and understanding from the diverse backgrounds,
experiences and perspectives of those who come before them. Brenda Hale
of course was the first woman judge in the House of Lords.
In terms of what difference it would make to have a more professionally
diverse background for judges so more solicitors become judges, have a look
at Phillip Reed writing Law Society Gazette on 8th November 2001 where he
writes that the experience of case management would be a huge advantage
in some cases and is more suited to a partner at a litigation firm as opposed
to an advocate. He’s arguing there that the case management skills of
solicitors may be better in some circumstances than the experience of
litigation which barristers have.
Track/Slide 19
Think about the following research task. Can you consider any other
categories than those above for analysing the composition of the judiciary.
Research a couple of those not covered in this lecture. As a starting point,
think about the religious or political persuasion of a judge. How might that
influence the way in which he decides a case? What relationship do these
categories bear to the others that we’ve already looked at? If you need a little
bit of inspiration on this problem, then have a look at Griffiths’ The politics of
the judiciary. There’s some interesting analysis of cases in the 1970s
involving industrial relations disputes.
Track/Slide 20
We are now going on to consider reform of judicial appointments, what can be
done to rectify the deficiencies of the system as it stands. As we’ve already
looked at in other lectures, the Labour government has introduced in the
Criminal Justice Act some of the most radical reforms of the English judiciary,
including first the creation of a Supreme Court and the abolition of the House
of Lords, second the establishment of a Judicial Appointments Commission
and thirdly what was supposed to be the abolition of the post of Lord High
Chancellor but has now been downgraded to the ending of his role as head of
the judiciary because of the offence this causes to the doctrine of the
separation of powers.
Track/Slide 21
If we look first of all at a Judicial Appointments Commission, the fundamental
question in relation to this is who should be on the Commission? The
government White Paper in this area proposed that the JAC should consist of
15 members. This would be as follows: 5 judges; 5 lawyers and 5 non-lawyers
or lay persons. Obviously the judges should be there in order to give input
from the judiciary in the selection of their successors. The lawyers are there to
represent the interests of the profession and to give legal expertise to the
process of selection. And then the non-lawyers, the lay people, are there in
order to balance out the lawyers and to reflect the fact that the appointment of
the judiciary affects people outside of the professions.
Track/Slide 22
In regards to the powers of the commission, the possibilities for the
appointment commission, the Department of Constitutional Affairs in its White
Paper A new way of appointing judges in July 2003 confirmed its proposal to
establish a JAC and floated three models for the powers of that body.
The first was that it should be an appointing commission, which would take
over the Lord Chancellor’s role in making judicial appointments. This would be
the most powerful model because the appointment would rest with the
commission itself.
The second was that it would be a recommending commission which would
simply make recommendations to a minister as to whom he or she should
appoint or recommend that the Queen appoint. This would be the least
powerful model put forward.
The third option would be a hybrid commission, one which combines models
one and two by making appointments at the lower end of the judicial
hierarchy, for example at the level of Recorder or Circuit Judge, but only
recommending more senior appointments which would still have to be
confirmed by the minister.
Track/Slide 23
The Constitutional Reform Bill 2004 has altered the composition of the
Commission slightly. There is to be greater involvement of lay members, this
rising to 6 instead of just 5 persons. A two-stage process will be built into the
system where the minister can reject applicants and appointment will
ultimately still be made by the minister responsible. In regard to the
composition as it stood, there will still be 5 judicial members, of whom 3 must
be Court of Appeal of High Court Judges, one a Circuit Judge and one a
District Judge. There will still be 2 professional members, so fewer than
before, one of whom must be a practising barrister and one must be a
practising solicitor. There’ll also be a magistrate and one from those listed in
part 3 of the Bill, which essentially means a Tribunal chairman or an arbitrator.
Members are to be formally appointed by the Queen on the recommendation
of the Minister and the judicial members are to be selected by the Judges in
Council.
Consider this question. Can you think of any reason why it may be desirable
to have the Minister responsible still appointing judges making the
recommendation to the Queen for the judge to be appointed?
Track/Slide 24
The JAC Judicial Appointments Commission itself needs to be appointed by
an independent panel. The proposal for this panel was that it would consist of
the following: the Permanent Secretary representing the Civil Service; a
senior judge and a senior figure unconnected with the legal system and an
independent assessor. In the past the Law Society have proposed that a JAC
should be appointed by the Lord Chancellor, which is rather surprising, given
the criticisms that the Law Society have made of the system in the past, with
the Lord Chancellor directly appointing the judges.
Track/Slide 25
We’re now going on to look at alternatives to a judicial commission and the
first example we are going to look at is a career judiciary. Other European
countries such as France, Germany and Italy have what is known as a career
judiciary. Graduates from law schools sit a competitive exam to attend in
France a two-year training course in Bordeaux. This school is called the École
Nationale de la Magistrature.
The advantages of a careers judiciary is that it creates a judiciary which is
younger and arguably better trained. For example, the age profile of the
French judiciary has been lowered. More women than men are amongst new
recruits to the judiciary. Around 80% of new judges are women. However,
these younger judges may not have the experience and authority of
practitioners of many years’ standing and it’s important to realise that in some
respects the French system regards judges as civil servants, as part of the
civil service, rather than in the way that we regard judges as being
challengers to the executive with powers to rule against the executive and not
as actually part of that executive.
Track/Slide 26
An alternative to a career judiciary is the concept of elected judges. This is a
democratic option with selection of judges by a popular vote and different
systems of doing so can be found in the main jurisdiction which uses this
method, which is the United States. Firstly judges are elected and then
subject to confirmation in office by a popular vote every few years. Secondly,
judges may be appointed by the governor and then subject to confirmation in
non-contested election, so ratified by the people in the election, although
appointed by someone with executive power. And thirdly, judges are
appointed for life or until the retirement age of 70 in at least 3 states in
America.
Track/Slide 27
We need now to consider what the problems may be with elected judges.
These may be stated as the involvement of politics, first of all. Secondly that
big business may fund the campaigns. Thirdly, that such choice is susceptible
to populist measures in the same way that politicians in this country are.
If we look at these in a bit more detail, first the involvement of politics.
Properly. Democratic elections require an informed choice. In America in
many judicial elections there are either too many or too few candidates in
order for the electorate to make that informed choice. In many states a
candidate has to campaign first to get nominated and then to get elected. This
can compromise a future judge’s independence. It can also prevent well
qualified attorneys from even getting nominated. Politics is involved in the
nomination of the candidates. Looking at big business to fund the campaigns,
as you may be aware from the American election last year, in order to fund
elections major finance is needed and candidates cannot raise this personally
so they need sponsorship, either from political parties or from other sources
such as corporations. This may raise difficulties as to their impartiality. Finally
they are susceptible to populist measures in the same way that politicians are.
Judges will have an eye on re-election and therefore may be swayed by
public opinion to decide something as the public wishes, or at least as far as
we can determine, as the public wishes rather than on the merits of the case.
This was a problem which arose in this country in regard to the Home
Secretary’s powers in relation to the pardoning of offenders, exercised as part
of the Royal Prerogative.
Track/Slide 28
A final option to consider for the appointment of judges is the appointment of
academics. Some judges have been appointed in this country on the basis of
their academic careers, for example, Baroness Hale was appointed to the
Court of Appeal from an academic position at the University of Manchester. In
some countries this is much more common than has been the case in
England and Wales. It’s provided for in the European Court of Human Rights
by Article 223 of the Treaty of Union and it’s also incorporated into the
European Convention on Human Rights by Article 21, which provides that
judges shall be of high moral character and must possess the qualifications
required for appointment to high judicial office or be juris consults of
recognized competence. Judges so appointed may arguably be better
equipped to judge the finer points of academic law, which are found in the
higher appeal courts. They may not however be suitable to deal with the dayto-day litigation in the lower courts, although arguably, as was the case with
Baroness Hale, she sat as a Recorder before she was appointed to higher
offices, although this was part-time. There is at least an argument that the
same analytical skills that the academic demonstrates in their career can be
brought to bear on the conduct of a trial.
Track/Slide 29
We’re now going on to look at the meaning of judicial independence, a major
constitutional principle. It is a natural right of a party coming before a court to
have fair trial by an impartial unbiased tribunal. This has been written into the
rules of public law in this country for many centuries and is also recognized in
the Convention on Human Rights under Article 6. The doctrine of the
separation of powers also requires that different branches of government,
legislative, executive and judicial, should be independent of one another. This
means that whoever decides what the law should be, what an offence, is a
good example, should be, should not be the same as the person who arrests
someone for that offence and then judges them because of the danger of bias
inherent in such a system.
Judicial independence has not always been guaranteed by the constitution.
Until the 17th or 18th century judges were appointed at the pleasure of the king
or queen and their tenure of office usually lapsed on the death of the
sovereign, having to be reconfirmed by the successor. The Act of Settlement
of 1700 guaranteed that judges of the High Court could only be removed by a
motion of both Houses of Parliament and therefore made a fundamental
reform to the system, guaranteeing judicial independence.
Track/Slide 30
In it’s modern sense there are therefore 2 meanings of judicial independence.
First independence of the executive, the power to challenge the executive on
certain matters of law. And second, impartiality between the parties. There’s
no interest in the determination of the dispute in front of them. R v Gough laid
down the test of a real danger of bias as to whether the tribunal will not be
impartial between the parties. Traditionally, this was expressed as a pecuniary
interest in the determination of the trial. In the case of Dimes v Proprietors of
the Grand Junction Canal 1852 case we’ll go on to consider how that has
been widened in just a second. Lord Hewart in R v Sussex Justices ex parte
McCarthy laid down the famous formulation that “justice must not only be
done but manifestly and undoubtedly be seen to be done”. That is to say that
the courts must be beyond reproach in their decisions and therefore should be
independent of the executive and should also be seen to be as well as
actually being impartial between the parties to the dispute.
Track/Slide 31
Just to consider the wider scope of the doctrine in modern times we need to
look at the case of Re Bow Street Metropolitan Stipendiary Magistrate ex
parte Pinochet Ugarte. Pinochet was the dictator of Chile who overthrew the
legitimate government in 1973. He perpetrated killings against political
opponents within Chile to bolster his own power. Pinochet came to the United
Kingdom for medical treatment in 1998. Spain issued international warrants
for his arrest and extradition. The Stipendiary Magistrate in the case issued
the warrant for arrest under the Extradition Act 1989.
Track/Slide 32
The case eventually made it’s way to the House of Lords where the House of
Lords rejected Pinochet’s arguments by a majority of 3 to 2. However, the
lawyers for Pinochet subsequently found out that one of the judges who had
decided the appeal, Lord Hoffman, was a director of Amnesty International
and that his wife also worked for the charity. They petitioned the House to
reconsider its own decision, which was a novel thing to do at the time. The
House held that Lord Hoffman should have withdrawn from the case on the
basis of his involvement with Amnesty, significantly widening the possibility of
bias or prejudice from it’s traditional pecuniary meaning to a much wider one.
This is the true significance of the case.
Track/Slide 33
You should now be able to do the following things. First, describe the different
levels of the judiciary in England and Wales and the qualifications required for
appointment. Second, be able to analyse the background of the judiciary in
regard to different sociological categories. Third, describe the Government’s
proposals for a Judicial Appointments Commission and the merits of these
reforms. Fourth, state what is meant by a career judiciary and elected judges
and evaluate the desirability of such methods for appointment being
introduced into England and Wales. And finally describe what is meant by the
concept of judicial independence.
Track/Slide 34
For further reading on this topic, see in particular Slapper and Kelly The
English Legal System (London: Cavendish Press, 2004, 7th edition), chapter
6 and also Griffiths, J.A.G., The Politics of the Judiciary (London: Fontana,
1997, 5th edition), which goes into some detail as to the political bias of the
judiciary.