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. 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. 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. Prior
2005 the head of the judiciary was a Cabinet minister, the Lord
Chancellor. 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 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 new politics are
different in every respect. 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. Prior 2006, the appointment of
judges 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 Queen who was advised by Lord Chancellor. 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 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, Supreme Court swept away the constitutional
conventions that had grown up to protect decision making for
judges working within the institution of Parliament. 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. 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.
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. 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. 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, there are several ways in which the judges
are protected from outside pressure when exercising their
judicial functions which is called institutional independence.
Firstly, 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. Besides, under the Senior Court Act 1981, judges are
safeguard from dismissal under the principle of security of
tenure during good behaviour. 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. The superior 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.