Inferior judges
The Lord Chancellor is responsible for appointing all lower levels of the judiciary. At this level it is possible for candidates to apply for such a vacancy, usually by a general application.
Applicants are short-listed and interviewed by a panel which includes a serving judge, an official from the Lord Chancellor’s Department and a lay person. The interview panel put their view to the Lord Chancellor who will eventually decide the best people for the positions available. For circuit judges and recorders the appointment is then made by the Queen on the advice of the Lord Chancellor. District judges are appointed directly by the Lord Chancellor.
Newly appointed judges from are trained by the various Committees of the Judicial Studies Board (JSB) which was established in 1979. There are three committees - Civil, Criminal and Family - made up of experienced judges. The Committees’ main function is to provide the necessary training to enable the judiciary to carry out their work effectively by maintaining and developing effective skills.
Most of the training is aimed at recorders, once a lawyer has been appointed as a recorder in training, they go on a one-week course run by the Judicial Studies Board, and then they shadow an experienced judge for a week. After this they will sit to hear cases.
There is no compulsory training given to new High Court judges, although they are invited to attend the courses run by the Judicial Studies Board. Recently the need for training has been fully accepted although previously the attitude towards training was seen as insulting to lawyers, who had spent all their working lives in the courts building up expertise in their field.
Explain and comment on the importance of judicial independence.
The independence of the judiciary is seen as important in protecting the liberty of the individual from abuse of power. Judges in the English system can be thought of as being independent in a number if ways. It can be said that judges are independent from the legislature and the executive. Independence from these branches is important for a number of reasons.
Firstly judges are generally not involved in the law-making functions of Parliament; full-time judges are not allowed to be members of the House of Commons, although there are exceptions for part-time judges, who are allowed. However, judges can be members of the House of Lords in its legislative function – law lords are life peers and can take part in debates on new laws. There is a convention that the Law Lords will not take part in overtly political debate, but over recent years there have been instances where they have entered into controversial areas of law making. An example of this would be where the Governments policies on sentencing caused Lord Taylor to be highly critical of the 1996 White Paper proposals to bring in minimum sentences.
Further, the government cannot dismiss superior judges and in this way they can be said to be independent of the government. They can make decisions which may displease the government without the threat of dismissal. This allows the judges to make decisions for themselves and not be pressurised by anyone else to make a decision which would suit them. However, the appointment of judges is not independent from the executive as the Lord Chancellor, who is a member of the government, is involved in the appointment of judges and the Prime Minister is responsible for the nomination of most senior judges.
Thus there is a clear utility in our judges being largely independent of the legislative and executive branches. Other reasons for why independence is important include the fact that any cases involving governmental power should be free of government influence so no bias or wrong-doing can occur. Furthermore, citizens need to be able to feel that they are going to be given a fair trial and therefore do not want to be judged by someone open to influence as it could affect the fairness of the trial.
So clearly it is a good idea our judges should be independent and protected from outside influence and to facilitate this their independence is preserved in a number of ways. This independence helps judges to remain neutral and decisions are made solely on the merits of the evidence before them. Firstly, judges are given a certain degree of financial independence. Judicial salaries are paid out of the consolidated fund so that payment is made without the need for Parliamentary authorisation. Secondly, judges have immunity from being sued for actions made in the course of their judicial duties. This ensures that decisions are made fairly and which have not been made simply to please people; a judge should not feel threatened when making an unpopular decision. Similarly, judges cannot be removed, which eliminates the threat of dismissal and relieves them of some pressure involved in decision making.
Although judicial independence is very important and to a large extent exists, critics may argue that there are many factors which make judges partial in their decision-making, primarily stemming from the fact judges have been known to be distant from the society they live in and simply out of touch with people.
The reason for this is that judges are drawn from the ranks of barristers, and traditionally those training to become barristers have required a private income to survive the first few years of practice. Since becoming a barrister is an expensive process this automatically excludes a large section of the population. The result of this is that most judges will initially come from a small section of society and who will share the same privileged values. Judges are seen as notoriously out of touch with ordinary people (for example, Mr Justice Harman had never heard of the band Oasis).
The fact that judges are largely drawn from a narrow social group affects their outlook and the manner in which they do their job. Some would say this factor hinders their capacity to make informed, fair judgements and that judges live at such a distance from ordinary people, which can ultimately make them partial in some circumstances. Their white, privileged, male characteristics are likely, or at least liable, to make them sympathetic to some groups (rich/well educated) and less sympathetic to others (poor/ethnic minorities). The background of judges is also likely to make them conservative in the sense that given the need to decide between new and radical or ancient, tried and tested methods, many judges would opt for the latter. All of this raises questions regarding the true independence of judges and the genuineness of their supposed impartiality.
Overall it can be seen that judges are to an extent independent of the government, although it is not clear how impartial or how influenced they are by their backgrounds and the section of society they spring from. Judges are still predominantly old, white, conservative males drawn from the privileged class and these characteristics can colour their decision-making faculties. With regards to the independence of judges in relation to the other instruments of state, there is a principle of separation of powers which to a large extent is adhered to and preserves the independence of the judiciary. The role of the legislature, Parliament, is to create the laws, the executive puts forward most bills to Parliament and implements the law and the role of the judiciary is to interpret and enforce the law. If one was to see the branches of government this way then there is a separation of powers and the judiciary in effect independent from the government. However, the judiciary has another power that blurs the separation of powers slightly and might undermine their complete independence. As well as possessing the ability to interpret and enforce the laws of the land, judges are in control of the ‘common law’ which takes them into the law making territory of the legislature. Common law is judge made law that arises out of custom; a decision made by one court of law must be followed by others facing similar situations. Therefore, the question whether judges are truly independent is intrinsically linked to whether there is a strict separation of powers. In conclusion it can be said that for the most part the judiciary can be said to occupy an independent role but there is no strict separation of powers guaranteeing complete independence.
