Superior judges are presumed to be independent because they cannot be dismissed by the government. But they are appointed by Lord Chancellor (Lord Faulkner) who is a member of the government and will appoint judges at all levels. The Prime minister (Tony Blair) is also involved in the nomination of the most superior judges. The Lord Chancellor will also monitor any complaints against the judges. He will the write to them arranging for them to be seen by officials and due to this method this is seen as pressure from the executive.
Judges are protected by the outside pressure when exercising their judicial functions. These are;
- The payment they receive doesn’t need the governments authorisation giving the a certain degree of financial independence but this does not protect them completely from the government as changes in the retirement ages and qualifying periods for pensions means they can still interfere with judges.
-
To ensure that they are independent government decision making is in Sirrors v Moore (1975). This case meant that judges were given immunity from being sued for actions taken or decisions made in the course of their judicial duties.
- The security of the time that a superior judge serves is protected from the treat of removal.
Professor Griffith pointed out that “judges are too pro- established and conservative with a small ’c’”. This suggesting that the judiciary is not as independent as it would like us to believe. Another idea is that because of the type of class that you will be working with you will have their certain class of ideas as well. This would affect the way a judge would give a judgment.
There is evidence that judges are not as pro-establishment as sometimes thought. In the DPP v Hutchinson (1990), woman who were camped outside of an RAF base in protest against nuclear missiles, they were prosecuted under a bylaw for being on the Ministry of Defence property unlawfully. When it reached the Law Lords they ruled in the woman’s favour holding that the minister had exceeded his powers in framing the bylaw so s to prevent access to common land.
In R (on the application of Q) v Secretary of state for the home department (2003) Collins j in the High Court declared That the Home Secretary’s power to refuse to provide assistance to asylum seekers who had not immediately, on their entry, declared their intention to claim asylum was unlawful. The court of Appeal agreed with this decision although they didn’t suggest how the Anti-Terrorism, Crime and Security act 2001 could be changed to be made compatible with human rights.
Judges, having a duty to interpret laws in a way which is compatible with European convention, had to interpret an act and the effect was not what the government had intended. This means that they are prepared to challenge the government and this establishment.
I believe that judges in the superior courts are independent from the government as they are not susceptible to the threat of dismissal although the laws to retirement age can affect the way they use their judicial powers. They are also allowed to sit in the House of Lords in its judicial capacity and argue for or against a new law that may affect people’s human rights. Inferior judges I believe are not independent because they can be threatened with dismissal and the Lord Chancellor can over rule them in some cases. They are also under a lot of pressure from the government and the House of Commons.
