Judges

Question 1

What is the fundamental principle of the judiciary in the rule of law. (link to separation of powers)

Answer 1

The Independence of the JUDICIARY is a fundamental principle of the Rule of Law.

Question 2

Who is head of the judiciary?

Answer 2

The Lord Chief Justice

Question 3

Which act established the Supreme Court and which court did it replace?

Answer 3

The Constitutional Reform Act 2005 – replaced the House of Lords with the Supreme Court

Question 4

How does the creation of the Supreme Court help with the separation of powers?

Answer 4

It separates the UK senior judges and the upper House of Parliament

Question 5

Under the Lord Chief Justice comes the Superior judges, can you name them?

Answer 5

Superior Judges include:
1. Justices of the Supreme Court.
2. Lord Justices of Appeal
3. High Court Judges

Question 6

Under the Superior Judges comes the inferior judges, can you name them?

Answer 6

Inferior judges for both Crown and County Court include:
1. Circuit judges
2. District judges
3. Recorders (part-time)

Inferior judges For Magistrates Court:
1. District judges

Question 7

What is the role of the Lord Chancellor?

Answer 7

Head of the Ministry for Justice

Responsible for Legal Aid, the Law Commission, and the courts system.

Question 8

Does the Lord Chancellor have to be a lawyer or have a legal background?

Answer 8

No. They can be drawn from a background other than law
(S2 constitutional Reform Act 2005)

Chris Grayling became the first non-lawyer in 400 years to hold this post.

Question 9

How did the Constitutional Reform Act 2005 change the role of the lord chancellor?

Answer 9

The Lord Chancellor NO LONGER:

Sits as a judge in the House of Lords

Heads the Judiciary

Takes a role in the judicial appointments process

Required to be a member of the House of Lords

Automatically becomes a speaker of the House of the Lords.

Question 10

Who is the current Lord Chancellor?

Answer 10

Alexander John Gervase Chalk KC is a British politician and barrister serving as Lord Chancellor and Secretary of State for Justice since April 2023.

Question 11

JUDICIAL APPOINTMENTS PROCESS - describe the process before the Constitutional Reform Act 2005

Answer 11

OLD PROCEDURE
Lord Chancellor took a central role in appointments

Secret soundings – the old appointments process whereby information on a potential judge would be gathered over time from barristers and judges

No advertisements for judicial appointments

Secretive – eligibility to become a judge was based on numbers of year of rights of audience

Question 12

JUDICIAL APPOINTMENTS PROCESS - describe the process after the Constitutional Reform Act 2005

Answer 12

NEW PROCEDURE
Constitutional Reform Act 2005
Established the Judicial Appointments Commission.

Judicial Appointments Commission now has 14 members these are 5 lay, 5 judges, 2 legal professionals a lay magistrate and a tribunal member appointed by the king on the recommendation of the Law Commission.

The Commission is not involved in appointing judges to the Supreme Court
Tribunals Courts and

Enforcement Act: 2007
Eligibility to become a judge is based on the number of year post qualification experience

Question 13

What is the Judicial Appointments Commission made up of?

Answer 13

There are 15 members of the Commission;

membership of the Commission is drawn from the judiciary, the legal profession, non-legally qualified judicial officer holders and the public.

Question 14

The Judicial Appointments Commission recommends five judicial qualities for a good judge:

Answer 14

1. Intellectual capacity
2. Integrity, independence of mind, sound judgment, decisiveness, objectivity and willingness to learn
3. Ability to understand and deal fairly
4. Authority and communication skills
5. Efficiency

Question 15

How are judges appointments from a wide range of backgrounds encouraged?

Answer 15

Appointments are now made solely on merit and posts are widely advertised to encourage a wide range of candidates to apply.

The amount of time that a candidate has to have worked in the law has been reduced to increase the pool of potential candidates and to encourage applications from solicitors, barristers and tribunal judges.

Question 16

What is the role of a judge?

Answer 16

The role of judges is to apply the law as stated by Parliament in an independent manner. Parliament is the supreme law maker and so courts cannot question the law, merely interpret it.

Question 17

Name 2 ways in which the Human Rights Act has impacted Judges.

Answer 17

s2 Human Rights Act 1998 – judges should ‘take into account’ decisions of the European Court of Human Rights.

s3 Human Rights Act 1998 – all legislation should be interpreted in a way which is compatible with the European Convention on Human Rights.

Question 18

What is the role of a judge in a criminal case?

Answer 18

Judges preside over both civil and criminal cases. In criminal cases, the issue of guilt will be decided by a jury, and the judge will pass sentence.

Question 19

What is the role of the judge in most civil cases?

Answer 19

In most civil cases, the judge will decide the issue of liability and the amount of damages to be awarded.

Question 20

Describe Constitutional Reform Act changes
1. Judges (2 reasons)
2. Head of the Judiciary. (1 reason)

Answer 20

The establishment of the Supreme Court means that the superior judges are completely separate from Parliament. This creates an independent judiciary which is a fundamental principle under the Rule of Law.

Judicial Appointments Commission.

The Constitutional Reform Act 2005 also changed the role of the Lord Chancellor as it too was seen to be in conflict with the separation of powers. The Lord Chancellor is now known as the Minister of Justice.

Question 21

What is the biggest criticism of judges?

Answer 21

Male, stale, pale?
A huge criticism of the judiciary has always been that it is dominated by Oxbridge educated, old and upper class males.
The system of selection under the Constitutional Reform Act 2005 has gone some way to addressing this issue.

Question 22

Judicial Diversity Statistics – April 2016 - How many can you recall?

Answer 22

21% of Court of Appeal judges are female
21% of High Court judges are female
28% of all other judges are female
34% of judges are from non barrister backgrounds
Judges in lower courts are more likely to come from a non barrister background.
6% of judges identify as Black, Asian and Minority Ethnic.
Only 1 female Justice of the Supreme Court – Lady Brenda Hale

Question 23

Which college trains all judges?

Answer 23

Training of judges is carried out by the Judicial College, set up in 2011.

Question 24

What are the 3 main elements to judicial training?

Answer 24

There are three main elements to judicial training:
1. knowledge of substantive law, evidence and procedure

2. the acquisition and improvement of judicial skills
3. the social context within which judging occurs

Question 25

What does section 23 of the Constitutional Reform Act say about judge appointments?

Answer 25

To qualify for the appointments to the Supreme Court a Judge must have held high judicial office for at least 2 years or be in a qualified practitioner for at least 15 years eg, Court of Appeal or the House of Lords.

Question 26

What two things are judges given on their first appointment?

Answer 26

1. Induction
2. Mentor
   On first appointment, judges go through an induction programme, and will be assigned a mentor; usually an experienced judge.

Question 27

Once a judge has completed their induction do they take part in any other training?

Answer 27

Judges are expected to participate in continuing professional development through the completion of seminars and e-learning which teach judges about developments in legislation and procedure.

Question 28

Name 2 ways in which s3 Constitutional Reform Act 2005 guarantees judicial independence?

Answer 28

1. Judges are free from influence from the legislature – judges are not allowed to be MPs
2. Judges are free from influence from the government – they can make decisions which may displease the government without the threat of dismissal

Question 29

Name the Case Study: Court ruling that Parliament must vote on the process of the UK leaving the EU:

Answer 29

R (Miller) v Secretary of State

Exiting the European Union is a United Kingdom constitutional law case decided by the United Kingdom Supreme Court on 24 January 2017, which ruled that the British Government (the executive) might not initiate withdrawal from the European Union by formal notification to the Council.

Question 30

Judges should be free from political bias, but there are cases which show that judges tend to support the government - Can you name one?

Answer 30

Case Study: GCHQ case (1984), the ‘Spycatcher’ case (1987)

In 1984, by issuing a directive based on an Order in Council made using the royal prerogative, the government of Margaret Thatcher banned employees of the Government Communications Headquarters (GCHQ) from joining any trade union for national security reasons

Question 31

Judges can declare UK legislation incompatible with the European Convention on Human Rights - can you name a case?

Answer 31

Case Study: A and another v Secretary of State for the Home Department (2004)

The ruling in this case was a landmark decision. The House of Lords held that the provisions under which detainees were being held at Belmarsh prison (section 23) were incompatible with Article 5 of the European Convention of Human Rights

The case decision is so ground-breaking because it shows a willingness of the judiciary to check the powers and exercise of the executive in matters concerning national security.

Question 32

At what age do judges usually retire?

Answer 32

Judges usually retire at the age of 70.

Question 33

What do you understand by the term ‘Security of Tenure’ in relation to judges?

Answer 33

Judges have to be independent, so it is important that they have security of tenure, which means they should not be at risk of removal just because the government may not agree with their decisions.

Question 34

Can you give a case law example of when the government disagreed with a judge’s decision?

Answer 34

Case Study: In 2013, Judge Peter Bowers refused to jail a paedophile for accessing images of child abuse, saying “he’d have a hard time” in prison.

Question 35

Describe how a judge might be removed from office?
Can you name a case study?

Answer 35

However, judges can be removed from office by the Judicial Conduct Investigations Office, who deals with all issues of judicial discipline, if any allegations of misconduct are upheld.

Case Study: “Three judges removed and a fourth resigns for viewing pornography at work”, The Guardian, 17th March 2015.

Question 36

Do Inferior judges have the same security as tenure as superior judges?

Answer 36

NO
Inferior judges do not have the same security of tenure as superior judges, and the Lord Chancellor has the power to dismiss any inferior judge for incapacity or misbehaviour.

Question 37

The Crime and Courts Act 2013 introduced a range of reforms in criminal justice, courts, and policing. Some of the key reforms introduced by the Act include:

Answer 37

1. Establishment of the National Crime Agency (NCA): for leading the fight against serious and organized crime in the UK.
2. Abolition of the Office of Chief Coroner: transferred its functions to the Lord Chief Justice.
3. Changes to judicial appointments: a new Judicial Appointments Commission to oversee appointments to the judiciary.
4. Extension of magistrates’ powers: to allow them to hear more cases, including some types of serious criminal cases.
5. Increased use of community sentences: with the aim of reducing the use of custodial sentences and promoting rehabilitation.
6. Changes to the Youth Justice System: including the creation of a new Youth Justice Board, changes to the sentencing framework, and the introduction of new provisions to prevent youth reoffending.
7. Reforms to police complaints and misconduct procedures: including the establishment of a new Independent Police Com-plaints Commission.

Question 38

The Crime and Courts Act 2013
What are the two main reforms in this Act aimed at the judiciary?

Answer 38

1. Reform the judicial appointments process to introduce greater transparency and improve judicial diversity.
2. Introduce flexible judicial deployment to allow judges to move between courts and tribunals

Question 39

Have recent reforms have resulted in a completely independent judiciary?

1. What would you discuss in an introduction?
2. Arguments for and against?
3. Conclusion?

Answer 39

Introduction -
- Separation of Powers
- judges independence
- Constitutional Reform Act 2005 - A duty on gov ministers to uphold the independence of the judiciary, barring them from trying to influence judicial decisions.

Arguments for:
- Strengthened Independence
- Judges are not allowed to be MPs
- Judges are free from influence from the government

Arguments against:
- Lack of diversity
- Political influence may still play a role in judicial appointments.
- Judges tend to support gov - Cases: GCHQ case (1984), the ‘Spycatcher’ case (1987)

Conclusion
- Good steps towards independence
- Further work to be done
- Increases diversity to help with this

Question 40

Describe the theory of the separation of powers and how the judiciary has been reformed to comply with the theory.

Question 41

Explain the system of appointment of judges. Is the system for removal of judges fit for purpose?

Question 42

Discuss the extent to which judges represent a sufficiently wide cross section of the population.