In our constitution the Parliament is powerful in the United States the Judges are powerful. The United Kingdom is a constitutional monarchy; our constitution is what Parliament says it is whereas in the United States the constitution is based on what the Supreme Court says it is. The separation of powers is a factor within a legal system, it suggests that each branch of government should be separated and allocated different powers. This will balance the powers out and will "avoid a concentration of power in one body".
The UK has a weak separation of powers as there is no formal separation of the functions of, the Executive, Legislature and the Judiciary. The role of judges is to interpret and uphold the law; it is also the role of the judges to act as a check on the misuse of power this is done through judicial review. Judges can be categorized under two headings, the Superior judges and the Inferior judges. Superior judges are High Court judges who sit in the High Court, they need to be highly qualified either hold a ten year High Court qualification or have been qualified as a Circuit judge for two years.
It is highly likely that they would have previously sat as a Deputy High Court judge before being appointed by the Queen. Lord Justices of Appeal sit in the Court of Appeal they need to hold a ten year qualification or be a High Court judge. The Law Lords also referred to as the Lords of Appeal sit in the House of Lords they must either have a high judicial office for two years or a Supreme Court Qualification for at least fifteen years. They are appointed by the Queen on the advice of the Prime Minister.
Inferior judges consist of District judges who sit in the County and Magistrates Courts, Circuit Judges and Recorders who sit in County Court and/or the Crown Court. The current eligibility to become a judge is at least 7 years experience as a qualified lawyer, a minimum of 10 years experience is essential. The professional qualifications needed to become a judge are listed in the Courts and Legal Services Act 1990. The act is demonstrating advocacy rights that one has depending on the level of court. The Lord Chancellor is a member of the cabinet and he is the head of the judiciary in England and Wales.
His responsibilities include court procedure and, through the Court Service, the administration of the higher courts and many tribunals in England and Wales. The appointment process begins with the candidate having the minimum qualifications required for appointment, it is said that appointments are "strictly on merit, regardless of gender, ethnic origin, marital status, sexual orientation, political affiliation, religion or disability". The selection process continues with a self assessment which is carried out by the candidate against the criteria in the application form.
A further assessment is pursued in the interview to test the suitability of the candidate, if candidates show that they meet the criteria they will move to the next stage. The next process is referred to as the secret soundings procedure, this process is seen to be negative and brings about suspicion. It involves details of people who have knowledge of the candidate's work, this helps to decide on the suitability of the person. Although the process provides extra information this information is only seen by the Lord Chancellor, who then appoints or advises the Queen on the appointment.
Training for the chosen is organised by the Judicial Studies Board, it is seen to be inadequate as the courses are too short. The Constitutional Reform Bill 2004 puts forward four judicial factors, "Judicial Independence for the first time" this restrains government ministers from interfering or influencing judicial decisions. Our judges should be free from external influence either Parliamentary or Executive. Abolishing the Lord Chancellor which puts forward Lord Woolf Lord Chief Justice as the President of the Courts of England and Wales, his duties will involve training, guidance and the deployment of judges.
The third factor establishes an independent Supreme Court which will be independent from the House of Lords; this enables the judges of the Supreme Court its own appointments system. Judges should not sit in Parliament it is not very constitutional. The Bill has also established a new system for appointing judges; applicants will be assessed solely on merits and the recommendation of the new Judicial Appointments Commission. This is a downfall suffered by the minister, his powers are limited and he is unable to select his own candidates.
The Lord Chancellor has a great amount of influence on appointments which shows that authority and power is given to the Lord Chancellor and even if it is abused there is no authority to review the decisions. The system of appointment is under criticism, there is only a small number of women judges in the High Courts and not one female judge in the House of Lords ever this arouses suspicions of bias. The number of judges from ethnic minorities is 1% yet it was stated in the Lord Chancellor's Department's Annual Report for 1999-2000 that judges will "respect and have understanding of people of different backgrounds".
The average age of judges is estimated to be about fifty three; this can be seen as the appropriate age as experience is at a high level but if we put aside the long term experience it can be said that older judges have more traditional and conservative views and are less likely to take onboard more modern opinions. David Pannick stated in his book that "a judiciary composed predominately of senior citizens cannot hope to apply contemporary standards or to understand contemporary concerns" which expresses the negativity of having elder judges.
The judiciary itself needs reform especially the appointment system it is lacking social, gender and a racial mix which are important factors in creating a fair system. The present appointment system limits female candidates from being chosen this is where change is needed as there has been previous evidence showing that male judges have been unsympathetic towards women in rape cases. In 1982 a judge stated that "women who say no do not always mean no", this is the sort of attitude we need less of as a society, Helena Kennedy expressed clearly in her book "Eve was Framed" that male judges are "outdated and sometimes prejudiced" about women.
In conclusion the appointment system which is followed in our constitution is unbalanced and unrepresentative. It causes a concern as a society and by definite creates suspicions of bias held by the members of the judiciary. The Lord Chancellor is a member of the cabinet therefore of the executive as well as being head of the judiciary, he holds great authority and power as he also appoints members of the judiciary.
This can be seen with the present judiciary who are collectively all from the same class; all high court judges are white which again creates suspicions of bias decisions being carried out. The government have created an appointment system which is by far fair; it needs reform to create a representative and well balanced judiciary.
Constitutional Law Fourth Edition – Cavendish lawcards series Constitutional & Administrative Law Fifth Edition – Hilaire Barnett The English Legal System – Jacqueline Martin British Government and the Constitution – Turpin.