Chapter 7: Judiciary

Question 1

What are the 6 roles of judges?

Answer 1

1. Dispute Settlements - interpreting, clarifying, aplpying, declaring the law
2. Case management - Making sure trials are efficiently ran
3. Training (for new judges/refresher for existing ones)
4. Extra-judicial activities - speeches/lectures
5. Judicial Review
6. Upholding ROL

Question 2

What were the main critisms on the judiciary before the Constituional Reform Act 2005?

Answer 2

Lacking judicial independence

1. LC (head of LCD) handpicked by PM - politcal influence
2. Lord Chancellor’s Department (LCD) - responsible for the selection and appointment of judges
3. Position of Lord Chancellor (was a speaker in all 3 organs)
4. Composition of the judiciary (was not diversed - Dominated by white, males, oxbridge educated/public school, middle & upper-middle class)

Question 3

What is the nature and characteristics of judicial accountability & independence?

Answer 3

• It is linked to concept of separation of powers
• Judiciary impartial and independent, free from all internal & external pressures (should not be swayed/affected by pressure in their judgements)

Question 4

What are 8 examples of internal and external pressures that judges may face in whcih judges may not be affected by?

Answer 4

1. Executive
2. Legislature
3. Individual litigants
4. Pressure groups
5. The media
6. Powerful corporations
7. Self-interest
8. Other senior judges

Question 5

What is the concept of ROL?

Answer 5

The fundamental constitutional concept that is used to describe the factors necessary for a well-functioning state and to constrain the exercise of arbitrary powers

Question 6

What is the concept of judicial independence?

What academic says it is necessary for a democratic state?

Answer 6

• The vital importance of this independence follows from the judiciary’s core responsibility. it is the branch of the state responsible for providing the fair and impartial resolution of dispute between citizens and the state or state entities under the prevailing rules of statute or

Sir Igor Judge observes that

• It is not a privilege of the judges themselves. But is necessary for public in a democratic state to ensure that people can live securely and that their liberty is safeguarded and only interfered with when the law permits it

Question 7

What are the 2 key aspects of judicial independence?

Answer 7

• Personal independence
• Institutional independence

Question 8

What is Personal Indipendence?

Answer 8

Individual cases must be free from all elements of personal interest/motivation directly and indirectly, and decided purely on the strict application of ROL to the evidence presented. They must be fearless in their judgement, demonstrating moral courage and legal accuracy

free from bias

Question 9

What is the statute and case ‘test’ that supports the concept of personal independece of the judiciary?

Answer 9

Compliance to Article 6 ECHR

• “in the determination of his civil rights & obligations/any criminal charge against him, everyone is entitled to a fair & public hearing…by an independent & impartial tribunal…”

Porter v Magill (2001) test - ‘no bias’ test

1. First - Court considers all the circumstances where there is alleged/possible bias
2. Second - Judges ask the question: “Whether the fair minded & informed observer, with regard to all the facts, would conclude there was a real possibility of bias?”

Question 10

What is institutional independece?

Answer 10

The entire judiciary must be independent & separate from other arms of state (e.g. legislature & executive)

Question 11

What 4 importances has the Constitutional Reform Act 2005 brought to institutional independence

Answer 11

Creation of UKSC

• Enhances appearance of judicial independence

Changes to role of LC

• Remains only in the executive body

Creation of Judicial Appointment Commission

• Selection of judges is now done by the JAC

Codification of Judicial Concenpt

• Section 3(1) CRA 2005

Question 12

What does section 3(1) CRA 2005 state in codification of the judicial concept?

Answer 12

Lord Chancellor, Ministers and all individuals who take part in matters related to the judiciary and administration of justice have an active role to continue to promote and uphold the “continued independence of the judiciary.”

Question 13

What are the 3 other existing laws that protect judicial independence

Answer 13

1. Security of tenure - Judges hold office, are subjected from the requirement of good behavior
2. Security of salary - Salary is fixed
3. Immunity from suit (Sirros v Moore) - Judges should be able to discharge their duty with complete independence & free from fear

Question 14

What are the 7 reasons why the reform of CRA 2005 was needed?

Answer 14

Importance of judicial independence

1. Judges are public figures responsible for upholding liberties & administration of justice
2. Judges are expected to exercise equality
3. Judges must be completely impartial & objective
4. Judges live in Ivory Tower
5. Impact of the Human Rights Act 1998
6. Uphold the Separation of Powers
7. Development of law

Question 15

When and who announced the reform proposals?

What did he say the effect/impact of reform would be for the judges?

Answer 15

In June 2003 - Tony Blair (then PM) announced several major constitutional changes, as it would greatly impact

• The role of judges
• The appointment of judges henceforth

Question 16

What were the 5 proposals for reform stated by Tony Blair?

Answer 16

1. Abolishing the role of the Lord Chancellor
2. The LCD will now be designated as the Dept of Constitutional Affairs (note - now changed to Ministry of Justice)
3. The abolishing of the Judicial branch of the HOL as the highest appellate court
4. Setting up of UKSC (effective 1st Oct 2009)
5. Creation of a Judicial Appointments Commission (in charged of selecting judghes)

Question 17

What is the current appointment body for selecting candidates as to-be judges?

Answer 17

Judicial Appointments Commission

Question 18

What date was the JAC created?

What introduced the JAC?

Answer 18

Created on 3rd April 2006 following the CRA 2005 reforms

JAC was introduced in Part 4 of the CRA 2005

Question 19

How many members are in the JAC? And who are they?

Answer 19

JAC comprises of 15 members in total

• 1 chairman
• 5 judges
• 2 lawyers
• 1 lay justice (magistrate)
• 1 tribunal member
• 5 other laymen

Question 20

What is the function of the JAC?

Answer 20

1) To select and recommend the best qualified candidates regardless of

• Gender, ethnic origin, marital status, sexual orientation, political affiliation, religion, and disability

2) Statutory duty to consider how best to widen the pool of applicants to increase diversity of the judiciary

• Responsible for a modern, transparent appointments system

Question 21

What are the 2 focuses/aims of the JAC?

What are the 4 objectives that they want to preseve?

Answer 21

Provide info about being a judge

• Provide sufficient awareness amongst interested parties to understand the career expectancy

Look for suitable candidates & promote awareness amongst representation groups

• E.g. women, ethnic minorities

Objective is to preserve
* Equality
* Opportunity
* Diversity
* Fairness and balance

Question 22

What is the 3 step selection process of the JAC?

Answer 22

1. JAC is responsible for selection of all judges (except for those who are in the UKSC, which will replace the HOL)
2. UKSC will be appointed by ad hoc commissions that will propose the selected candidates to the LC
3. Then LC will propose to the PM to appoint the candidate (rubber stamping basically)

• Unless he decides to refuse/reconsider

LC has the final power to decide

Question 23

What are the 3 statutory obligations of the JAC?

Answer 23

1) Judicial appointments are made solely on merit

• S63(2) CRA 2005 - solely on merit

2) But has to be both merit & diversity (only after 1st requirement)

• S64 CRA 2005 - encouragement of diversity

3) Only appoint people with good character

Question 24

What are the 4 main changes the JAC has brought. Explain.

Answer 24

New simplified definition of merit

• Intellectual capacity
• Personal qualities
• Ability to understand and deal fairly
• Authority and communication skills
• Efficiency

Fairer system for filling High Court vacancies

• All candidates need to apply for vacancies
• All are shortlisted candidates that will be interviewed (F2F)
• References will be sought fairly and openly

More streamlined and objective application process

• JAC reduced the old application from over 20 pages to 9
• Introduced new, impartial process for all judicial officeholders

Improved marketing of vacancies

• JAC’s advertising will be more prominent and better targeted to encourage more people to apply

Question 25

What are the advantages of the JAC?

Answer 25

1. Allows fair and open competition, encouraging a wide range of applicants 2. Secretive ‘invitation process’ is abolished (used to be tap on the shoulder) 3. Reduced the aspect of patronage (privilege) 4. Appointment is reassuring 5. Allows better access to the judiciary 6. Likely increases diversity 7. Maintains the constitutional principle of The Queen acting on Ministers advice

Question 26

What are still the 5 remaining issues of the JAC?

Answer 26

**Process is still governed by consultation and still subject to political interference** * Government still has final say **Members of JAC are appointed by LC** * Whether independent votes are truly there, or is it being undermined by strategic election of its members? **Government (LC) has not given full appointment power to the JAC** * LC still has the ultimate control of the procedure (LC appoints candidates) * He has the right to refuse proposed candidate but accept the next proposed candidate * May lead to strategic considerations **JAC still lacks diversity** * **The Guardian** of 28 January 2008 reported that although the reform has taken place, the judiciary in the high court bench still remains as white male barristers and most which are educated at independent schools **The system was no better at creating a more diverse judiciary** * **Keith Vaz**, the barrister and Labour MP stated it is actually worse than before * Previously, both Charlie Falconer and DErry Irvine (former LC) made the appointments * Now it is up to Jack Straw to decide the standard of diversity

Question 27

What sections and subsections of the **CRA 2005** talk about the JAC **selection & appointment** process?

Answer 27

Section 27 - **selection process** * Section 27(1) * Section 27(2) * Section 27 (5) Section 29 - **appointment process** * Section 29(2) Section 30 - **powers/limitations of LC** * Section 30(1) * Section 30(2) * Section 30(3)

Question 28

What does **Section 27 of the CRA 2005** (selection process) state?

Answer 28

**Section 27(1)** * The JAC must: determine selection process, apply the selection process and make the selection accordingly **Section 27(2)** - JAC must consult: * Senior judges in UK (not part of the commission) * SOS for Northern Ireland * LC * 1st Minister of Scotland * 1st Secretary in Wales **Section 27(5)** * Selection must be based on merit (the 5 core qualities)

Question 29

What are the 5 core qualities of merit that **Section 27(5)** uses to select candidates?

Answer 29

1. **Intellectual capacity** 2. **Personal qualities** 3. **An ability to understand and deal fairly** 4. **Authority and communication skills** 5. **Efficiency**

Question 30

What does **Section 29(2)** state? ## Footnote The appointment process (2nd process)

Answer 30

**Section 29(2)** * Where a person has been selected. LC can choose to **accept**, **reject**, or **request to reconsider** the selection ## Footnote But note **S30(1)** & **S30(2)**

Question 31

What does **Section 30** state? ## Footnote Powers/limitations of the LC

Answer 31

**Section 30(1)** * LC can only reject the person if not suitable for office **Section 30(2)** - LC can reconsider only if: * **Not enough evidence** of unsuitability * There is evidence the person is **not the best** candidate **Section 30(3)** * LC must give JAC reasons in **writing** for rejecting, recommending or reconsideration

Question 32

What has the **CRA 2005** done for the Judiciary? Are there still **critisms** on improvements that can be made?

Answer 32

The CRA 2005 has created the JAC which has strengthened judicial independence. Although there is still room to improve **composition/diversity** of judges.

Question 33

What did the **Select Committee** highlight on the Constituion published on **28th March 2012**? ## Footnote regarding improvements on appointing candidates

Answer 33

Stated * **JAC** should continue to be the **primary appointment method** for courts & tribunals. That the LC should have no power to determine the JAC’s membership. As this would damage JI and the perception of JI * **LC** should continue to be **limited in the appointment** of senior members of the judiciary (but still having veto power for most senior appointments). LC should not be permitted to select candidates from a shortlist and sit on selection panels. This would hinder the appointment process & would undermine JI

Question 34

What did the **Select Committee** recommned should be done to improve **selection and appointment** on 28th March 2012?

Answer 34

Recommneded that 1. UKSC selection commission should **increase in size**, with more lay representation (magistrates) 2. President and Deputy President for UKSC **should not sit** on the selection commissions formed to choose their successors 3. LC’s power to reject or reconsider should **transferred to the LCJ** 4. In principle, **JAC should be responsible for the appointment** of deputy High Court judges 5. **Judicial careers should be made clear**, easing the movement between different courts and tribunals, and to seek promotions

Question 35

What did the **Select Committee** recommend for **diversity** of the Judiciary on 28th march 2012?

Answer 35

1. Appointments panels must include **lay persons** who can bring different perspectives to assess candidates. Also a good way to avoid self-replication 2. All selection panels should be **gender & ethnically diverse** 3. All involved in appointmenting process should take **diversity training**

Question 36

What is the Act that created diversity changes post **CRA 2005**? What did was the aim?

Answer 36

**Crime and Courts Act 2013** * Introduced a number of measures to **improve transparency & efficiency** in the appointment process and **better diversity**

Question 37

What were the 4 areas of change/reform made by the **Crime and Courts Act 2013**

Answer 37

1. Working arrangement for judges 2. A new selection process 3. Composition of selection panels 4. Composition of JAC

Question 38

What change and effect did **working arrangement for judges** have in the CCA 2013? ## Footnote diversity change - post CRA 2005

Answer 38

Change * Flexible **working hours** * **Flexible judicial deployment** to allow judges to move between courts and tribunals Effect * This would encourage more people to join

Question 39

What were the 7 changes that were created in the **new selection process** in the CCA 2013? ## Footnote diversity change - post CRA 2005

Answer 39

1) **Equal merit provision** 1. Where there are 2 or more candidates with same merit, then JAC would choose the option that **betters diversity** 2) **Positions below High Court** 1. JAC **no longer required** to consult 2 judges with relevant knowledge of the judicial vacancies 2. **LC’s powers** (accepting/rejecting/reconsider) **transferred to the LCJ** or Senior President of Tribunals 3) **Senior appointments** 1. All selection bodies consists of **5 members** 2. Current office holders are **disqualified** from sitting on selection bodies to select their own replacement 3. Selection body should include **both genders & different races** 4. **LC will be consulted** as part of the selection process 4) **COA appointments** 1. **LC must consult LCJ** before requesting 5 JAC members to convene (gather) for selection 5) **UKSC appointments** 1. LC must convene (gather) a selection commission 6) **Appointment of president of UKSC** 1. LC must convene a selection commission 7) **Appointment of LCJ** 1. LC consult LCJ before requesting 4 JAC members

Question 40

What change and effect did the **composition of selection panels** have in the CCA 2013? ## Footnote diversity change - post CRA 2005

Answer 40

Change * Must be an **odd number** and **diverse** in terms of gender and ethnicity * Must have **lay person for most senior appointments** Effect * Better balance of lay and judicial influence

Question 41

What change did **composition of the JCA** have in the CCA 2013? ## Footnote diversity change - post CRA 2005

Answer 41

* **More representative roles** that JAC selects for those who apply for them * 15 commissioners (including chairman) * **All candidates** recruited through open competition - except 3 judicial members selected by Judge’s Council/Tribunals Council * Membership of JAC Commission drawn from - 1. Judiciary 2. Legal profession 3. Non-legally qualified judicial officer holders 4. Public

Question 42

What authority stated 3 arguments for the importance of diversity? What are the 3 importances?

Answer 42

**2004 CDA consultation paper** on *Increasing Diversity on the Judiciary* 1. It creates **equal opportunities** 2. Contributes to the **legitimacy** of the judiciary as an institution 3. Allows **varying perspectives** on critical legal issues

Question 43

Explain further the 3 arguments of the importance of diversity in the judiciary shared by the **2004 CDA consultation paper**

Answer 43

It creates **equal opportunities** * All qualified individuals should be able to apply and be selected **on the basis of merit** * Failing to appoint the candidates will directly reflect the discrimination Contributes to the **legitimacy** of the judiciary as an institution * It is unacceptable for an unelected institution, the judiciary, to reflect neither diversity of society nor the legal profession * Being representative or at least reflective, of broader society **contributes to legitimacy and public confidence** Allows **varying perspectives** on critical legal issues * Important for the exercise of judicial discretion and where policy influences judicial decisions in public interest * Having different perspectives and values can **better debate and decision-making**

Question 44

What are the 5 problems with creating diversity/reasons for the slow increase of diversity?

Answer 44

* Experience deficit * Self-exclusion * Selection bias * The concept of 'merit' in action * The principle of merit

Question 45

What are the statistics of women judges, BAME office holders, and non-barristers from **2020 - April 2024** ## Footnote statistics

Answer 45

**Women judges** * April 2020 - 32% of court judges, 47% of tribunal judges, 56% of magistrates. * April 2021 - 34% of court judges * April 2022 - 35% of court judges * April 2023 – 37% of court judges * **April 2024 – 38% of court judges** **BAME office holders** * April 2020 - 8% of court judges 12% of tribunal judges, 13% of magistrates * April 2021 – 10% of court judges * April 2022 - 10% of court judges * April 2023 – 10% of court judges * **April 2024 – 10% of court judges** **Non-barristers** * April 2020 - 32% of court judges * April 2021 – 32% of court judges * April 2022 - 31% of court judges * April 2023 – 32% of court judges * **April 2024 – 31% of court judges**

Question 46

Who are the remaning women justices in the UKSC currently?

Answer 46

Today, only **Lady Lustice Rose** (Rose LJ) is the only white-woman as a UKSC justice * Rose LJ is the **4th female** UKSC justice * The **only woman** justice left after Lady Hale, Lady Black, Lady Arden retired in 2022