Up until recently the selection process was shrouded in secrecy and becoming a judge relied solely on the recommendation of the Lord Chancellor who consulted with other judges and leading members of the bar to identify potential candidates. Since October 1994 judicial places below high court level have been advertised and since February 1998 High Court places have also been advertised.
Once a judge is appointed or promoted, the Judicial Studies Board, which was set up in 1979 gives them training. Most of the training is aimed at the lower judges such as recorders but the higher judges are invited to courses by the Judicial Studies Board. The training is through one day or short courses. Much of it is aimed at keeping the judges up to date with developments of law, in 1993 the Runciman Commission recommended there should be a refresher course every two years to keep judges up to date. A recent idea in training the judges was to include a racial awareness course to try and prevent any racial discrimination in sentencing etc. Many people feel the training is inadequate.
b) There is a need for the judiciary to be independent to enable them to perform their job to the best of their ability and to prevent any form of bias due to the abuse of power.
But are they really independent, many people feel they are not.
To ensure the separation of powers Montesquieu put a theory forward in the 18th century. It identified three ‘arms’ of the state as legislative i.e. making the law (Parliament), executive i.e. administering the law (Government), judicial i.e. applying the law (judges).
Montesquieu thought these areas needed to be kept separate so that each ‘arm’ could keep a check on the other. This is one way the judges are seen to be independent, they are said to be independent of politics because they are not allowed to be members of the House of Commons. Law Lords do sit in the House of Lords but they do not take part in political debates.
They are said to be independent from the government because the government cannot dismiss superior judges. Since the Act of Settlement in 1701 they can only be removed by the monarch following a petition from both Houses of Parliament.
They are also said to be free from pressure because they have immunity from being sued for actions and decisions made during their judicial work (Sirros v Moore 1975). The judges should also be completely impartial and not have a personal interest in the case they are trying e.g. the Pinochet case in 1998.
There is also the point that judges are well paid so they are not tempted to be corrupt, however they are not that well paid and many barristers and solicitors have to take a pay cut in order to become a judge, this may cause the top barristers and solicitors to turn down judge vacancies because of financial reasons.
Many people also say that the judiciary are biased towards the government and there is evidence for this including the Spycatcher case.
However more recently there has been evidence that has shown the judiciary is not biased including DDP v Hutchinson and the Fire Brigades Union case in 1995.
Although there is a lot of arguments for judicial independence there is one person who conflicts with all arms of the state and is in many ways a hinder of judicial independence. This is the Lord Chancellor. Firstly he is a speaker of the House of Lords, he is a member of the cabinet, and he is one of the judges at the House of Lords, this is seen to conflict with the notion of separation of powers.
The Lord Chancellor is appointed by the Prime Minister and can be dismissed by the Prime Minister. He also only holds office while his political party is in power and if there is a change of government there will be a new Lord Chancellor. This therefore means the Prime Minister may appoint a Lord Chancellor that he thinks will benefit the present government. An earlier Lord Chancellor, Lord Elwyn-Jones admitted that the Lord Chancellors position did infringe on the separation of power but said he was a ‘universal joint’ between them ensuring each arm flourishes.
Earlier we have seen that the government cannot dismiss a superior judge, however the Lord Chancellor can exert pressure on them and the government has appointed him. In 1993 the Lord Chancellor sent a letter to Mr Justice Wood saying that he should consider his position if his powers were not used to the full effect. Although the Lord Chancellor denied he had meant resignation this shows that the government may have a small say in the members of the judiciary. Also the Lord Chancellor has the power to dismiss the lower judges himself and what's more after three years as a recorder judge you are required to re-apply and Lord Chancellor could easily refuse without any reason being given.
Judges are supposedly appointed upon merit only but the role of the Lord Chancellor and Prime Minister in the appointment has raised concerns over influence.
Overall I feel that the concept of judicial independence is challenged in a number of ways including government bias, the role of the Lord Chancellor and Prime Minister in appointment and dismissal, the possibility of corruption due to the lower salary and the mixing of the three functions of the state i.e. recorders etc can be MP’s. However, some of the opposition to independence is old, for example the point of government bias has been challenged in more recent cases. Also some of the opposition is non-important, for example just because the judges take a pay cut it does not necessarily mean they are going to be corrupt. Furthermore the point of the Lord Chancellor putting pressure on judges to resign does not mean they will because he cannot force them.
Therefore, I feel that the judiciary is independent enough to perform their job properly and to the best of the ability.
