The Meaning of ‘Judicial Independence’

1. The Meaning of ‘Judicial Independence’ Sarah, Nicki, Mike

2. What does it mean? • Judicial Independence can often be a confusing phrase, as it is used to mean to different things. The two types of Judicial Independence are; • Institutional Independence • Decisional Independence

3. Institutional Independence The definition of this is ‘the independence of the judicial branch of government from the executive and legislative branches’ This means that the judicial branch should be separate from the executive side of government. It is also saying that they should be separate from the legislative area of government. This is simply saying that any form of government should not be involved in the judicial branch whatsoever.

4. Decisional Independence The definition of decisional independence is ‘The independent way that judges should reach their decisions, taking into account only the issues of fact and law before them and disregarding their own wishes and those of, say. Government ministers, political parties, big business and the media’ This is simply saying that judges decisions should be be influenced by anything or anyone else other than the facts of the case brought up in a hearing. It also states that decisions should be made on a point of law and nothing else.

5. Why is judicial independence important? • Institutional independence: • This is important as the three branches (Judicial, legal and executive) should be independent from and separated from each other. This is so that one particular branch cannot become too powerful. As this could lead to dictatorship. (One person saying something and everyone else must follow it) • Decisional independence: • This type of independence is essential for many reasons: • To maintain public confidence in the legal system • To uphold the ‘rule of law’ • To protect individual rights and liberties

6. Developments • Not only is judicial independence important it is becoming increasingly important. This is due to a large number of developments. These have been out of control of the judiciary. This has resulted in the legislative and the executives under more scrutiny that before: • Following the introduction of the European Communities Act 1972, meaning the U.K courts have to work so that they are compatible with E.U courts. • Due to the Human Rights Act 1998 the U.K courts must also be compatible with the European convention on Human Rights. • Also, the courts are now having to rule more on the legal correctness of ministers actions.

7. Is judicial independence under threat?

8. Judicial independence is currently subject to several potential threats: • On several occasions the judiciary has been criticised for various decisions that it has made, notably in judicial review cases, human rights cases and on sentencing. The judiciary has been criticised by a number of senior government minister, including the then prime minister, Tony Blair. • Criticisms have not been directed at individuals and have been quickly brushed over.

9. Also it is hard to see how they can be squared with the new statutory duty on ministers to ‘uphold the continued independence of the judiciary’. This is contained in Section 3 of the Constitutional Reform Act 2005. • Judges are increasingly being called upon by the government to undertake non-judicial work with political overtones. One notorious example was the inquiry into death of Dr David Kelly carried out by Lord Hutton, the a Law Lord, in 2003-04. The then Lord Chief Justice, Lord Woolf, expressed his concern that the government had used Lord Hutton as a political tool.

10. The creation of the Ministry of Justice in 2007 is seen by judges as threatening the independence of the judiciary when sentencing.

11. How is judicial independence protected? There are various rules which contribute to the protecting of judicial independence. These rules can be divided up into protecting institutional independence and protecting decisional independence. - An example of the distinction is provided by the Constitutional Reform Act 2005.

12. Constitutional Reform Act 2005 This Act is concerned with protecting both institutional and decisional independence. It states: - The Lord Chancellor, other Ministers of the Crown and all with responsibility for matters relating to the judiciary or otherwise to the administration of justice must uphold the continued independence of the judiciary.

13. S.3 of this Act goes on to say that: ‘The Lord Chancellor and other Ministers of the Crown must not seek to influence particular judicial decisions through any special access to the judiciary.’ - This is only concerned with the decisional independence.

14. Other provisions concerned with protecting both institutional and decisional independence • Article 6 of the European Convention on Human Rights states that: ‘In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a..hearing..by an independent and impartial tribunal’ • The rules that limit the grounds on which judges can be removed from the office • The fact that judges’ salaries are not subject to a parliamentary vote but are paid out of the consolidated fund CONSOLIDATED FUND – refers to a government account, held by the Bank of England,from which spending is requested or authorised by Parliament

15. The rules that forbid judges from being members of political parties or in the case of full-time judges from sitting in the House of Commons • The rules that prevent judges from being sued for decisions made in the course of their judicial duties • The rules regarding contempt of court • The rules regarding judicial conflicts of interests

16. The Ministry Of Justice (Moj) This was introduced in 2007. It replaced the Department For constitutional dependence. (DCA) It was replaced with the Moj, it has taken over all the roles of the DCA plus the administration of the courts and the running of the prisons. The person in charge is called the ‘Lord Chancellor and Secretary of State For Justice’ The first person to take on this role was Jack Straw. He was previously a barrister.