Describe the ways in which judges are selected, appointed and trained.
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Describe the ways in which judges are selected, appointed and trained. The ways in which judges are selected and appointed are important and they vary as there are different types of judges with different abilities. The Lord Chancellor is particularly influential in this respect as he has the task of nominating and appointing all the lower ranks of the judiciary. The higher ranks are appointed by the Queen on the advice of the Prime Minister, but the Lord Chancellor still has some influence over these appointments. The Lord Chancellor is, in effect, the selector of the judges, though facilitated by the advice of the judiciary and the wider legal profession. Superior judges The appointment of judges to the House of Lords and Court of Appeal is by way of invitation. Here a candidate may be approached by the Lord Chancellor without having applied. In 1986 Lord Chancellor, Lord Hailsham published a document called 'Judicial Appointments' which gave some explanation of the selection process. It involves the Lord Chancellor's Department keeping files on all possible candidates and collecting confidential information and opinions about those candidates from judges. These files are secret so that the subjects do not know what is in them. The dominance of judges' positions relies mainly on word of mouth and the confidential opinion of existing judges.
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.
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.
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