Assess the extent to which judges are independent and neutral. The role of Judges: They do not just interpret and apply the law. They do wider activities that branch into other parts of government. Preside over court proceedings: ensure a fair trial act like a referee/umpire makes sure the rules of the court are followed by both sides act as a source of knowledge – giving advice to juries on interpreting the law – they are experts on the law. Interpret and apply the law: Interpret statute law laid down by Parliament.
Interpret it to certain extents. Can lead to conflicting interpretations by ministers and judges. ‘Make’ law in certain cases: Judges interpret statute law which is made by parliament. They make law (‘common’ law) which is built upon from previous judges in previous cases. Decide sentencing in criminal cases: This power has been reduced in recent years with the introduction of minimum or mandatory sentences. Some say this is one way politicians encroach on the role of the Judiciary Chair public inquiries and commissions:
Used for this purpose as they are independent and impartial Public inquiries are held like a court and may have quasi-judicial character Criticised for being too close to Parliament – some say ministers and politicians may influence them and undermine their impartiality. Examples: Lord Leveson (phone hacking) / McPherson report (SL) The Rule of Law: What is it? The principle that the law should apply equally to all – rulers and the ruled alike. John Locke (17c. ) “Wherever law ends, tyranny begins” Examples of where the rule of law has not appeared to apply:
Sub-principles: ‘No-one is above the law’: However concerns surrounding these points: Powers of the PM and other ministers are not subject to judicial oversight, so they are above the law. Parliament is sovereign meaning it makes, unmakes and amends the law and therefore is above the law. ‘Parliamentary Privilege’ – MPs have absolute freedom of speech within Parliament, they are not subject to legal restrictions on what they say in Parliament. The Queen: not subject to the law like others. Equality before the law:
All are supposed to be equal and there should be no bias, however concerns about: Wealthy can afford top lawyers – trials can be very expensive Access to legal aid is not easy, middle income groups discriminated against. Judges maybe biased against certain groups – women / ethnic groups as judges are from a different background, have different values. The law is always applied: The law must apply in all cases – it cannot apply in some and not in others. However: Not all crimes are reported (DV and rape) and therefore legally dealt with.
Police resources are limited and so many crimes ago undetected – eg speeding offences. ‘Trial by the media’ – some people may be punished without any legal proceedings taking place. Legal redress is available through the courts: The law should defend fundamental human rights. People rights are commonly infringed. However: There is no entrenched ‘bill of rights’ The Human Rights Act can be set aside by parliament if it wishes. Access to the European Court of Human Rights is expensive and time consuming. Judges and Politics:
Judges have to be impartial and non-political (separation of powers). This is a basic fundamental of liberal democracies. Are Judges independent? Judicial independence is a key part of the constitution – very important. How can they maintain this independence? Appointment process – Judicial Appointments Commission has meant this the process by which judges are chosen is far more independent than it used to be. It used to involve the PM and Lord Chancellor – this used to eb heavily criticised before this change – why would this be criticised?
Security of tenure: this means judges cannot be sacked. They remain until they retire at 70. This means they cannot be influenced by threat of getting sacked. (can only get sacked by both Houses of Parliament – hasn’t happened since 1830). (Junior judges are on a ‘tenure of good behaviour’ can be sacked by Lord Chancellor if they are found guilty of a criminal offence). Pay: Paid separately from Parliament. Decided by independent pay review body. Freedom from Criticism: MPs, ministers are not allowed to criticise judges’ decisions – however this is often breached.
(However Teresa May (Home Sec) criticised refusal to deport two terror suspects despite having links with Al-Qaeda) Independent legal profession: Judges/lawyers are trained by independent legal bodies – autonomous legal profession, regulated by the Law Society not by government. (Other European countries train their judges). : Role of the Lord Chancellor: Lord Chancellor used to be Head of Judiciary and a member of the Cabinet and this undermined the Judges independence. Since 2006 the Constitutional Reform Act has meant this role if far reduced to maintain independence.
Now the LC has to sear an oath to defend the independence of the Judiciary. Creation of the Supreme Court: CRA also meant the new Supreme Ct took over from the House of Lords being the highest court of the land. (very independent). NB: The fact that judges are brave with decisions and do get criticised is often seen as a healthy sign. Why?
Are judges politically neutral? It is impossible to be totally politically impartial many argue – judges cannot help have sympathies and political beliefs. Judicial neutrality is maintained in a number of ways: Political restrictions: judges should not be active in politics – i. e be members of political parties / pressure groups or give open support/criticism to either. Does not really apply to magistrates. Legal training: is all about neutrality – often judges have been working in law for 20-30 years. Accountability: senior judges have to explain their ruling highlighting points of law that have affected the decision. Accountability can be upheld by appeals and the fact that cases can be reheard by higher courts.
Not public figures: judges traditionally not in public eye – forbidden to be actively involved in debates etc. Restrictions relaxed since 1980s. Which has led to more Judges and Lords speaking out and influencing decision making. NB: Many criticise this by saying there is Conservative sympathy within the Judiciary – most are white / male/ middle aged / Oxbridge / middle class. Criticised for penalising and coming down harder on some groups – which groups? 2007: 108 High Court Judges – 1 was from ethnic minority. 70% privately educated / 78% went to Oxbridge. 10% of circuit judges are female.