The Independence of the Judiciary The position in the United Kingdom By Sir Henry Brooke Former Vice-President of the Court of Appeal (Civil Division)
The separation of powers The Act of Settlement 1701 Security of tenure for senior judges Not a purist version of the separation of powers (until recently)
Some anomalies The three-fold role of the Lord Chancellor Law lords in the House of Lords
The Constitutional Reform Act 2005 Section 1 This Act does not adversely affect The existing constitutional principle of the rule of law The LC s existing constitutional role in relation to that principle
Section 3 of the new Act The Lord Chancellor and Ministers must uphold the continued independence of the judiciary The Lord Chancellor and Ministers must not seek to influence particular judicial decisions through any special access to the judiciary The Lord Chancellor must have regard to The need to defend judicial independence The need for the judiciary to have necessary support
The Lord Chancellor s Oath In the office of Lord High Chancellor I will Respect the rule of law Defend the independence of the judiciary Discharge my duty to ensure the provision of appropriate resources to the courts A mark of the importance attached to these matters now that the Lord Chancellor is no longer a judge
A new Ministry of Justice The Lord Chancellor in the House of Commons No legal experience essential Jack Straw punctilious in defending the judges and the rule of law
The appointment & promotion of judges Formerly the Lord Chancellor was responsible Now a Judicial Appointments Commission: Five judges Six lay people (including the Chair) Two practising lawyers One lay magistrate & one tribunal judge
The Judicial Appointments Commission Selection must be on merit A duty to encourage diversity among those available for selection The Commission will always have the final word
Complaints & Discipline Formerly the Lord Chancellor was in charge Now an Office of Judicial Complaints Reports to both the Lord Chancellor & the Lord Chief Justice A difference between judicial misconduct and judicial mistakes
New disciplinary procedures An investigating judge Sanctions range from formal advice to dismissal The Lord Chancellor and the Lord Chief Justice must agree A right to a review The role of the Ombudsman
Relations with Parliament Judges give evidence to Parliamentary Committees An Annual Report by the Lord Chief Justice Parliamentary rules restrain criticism of judges Article 9 of the Bill of Rights
Relations with the media Virulent media criticism sometimes Sentencing decisions Rights of unpopular minorities Rights of suspected terrorists One of the two biggest threats to the independence of the judiciary Lord Chief Justice, 2007 Distorted and irresponsible coverage House of Lords Committee, 2007
The Judicial Communications Office Understands the world of journalism Corrects erroneous press coverage Provides useful information to the media
The Consultative Council of European Judges Judicial Independence a prerequisite to the rule of law a fundamental guarantee of a fair trial Not a prerogative or privilege in the interests of the judiciary but in the interests of the rule of law and of those seeking and expecting justice
Relations between the judiciary and politicians Only one case in last 50 years when political considerations have affected a judge s career A creeping tendency for ministers to criticise individual judges Michael Howard as Home Secretary David Blunkett as Home Secretary Prime Minister Tony Blair
Laws against terrorism The law lords refuse to discuss legislative proposals in advance The judiciary bears not the slightest responsibility for protecting the public Charles Clarke MP Essential that the law lords should not even be perceived to have prejudged an issue House of Lords Select Committee
The Craig Sweeny case Sentence in a child abuse case said to be unduly lenient Outspoken media and ministerial criticism of the judge lasted for 3 days before the Lord Chancellor said anything If we attack the judges, we attack an incredibly important part of the system when it is not their fault An inadequate response House of Lords Select Committee
The position today Ministers seemed aware they were playing with fire No repetition of episodes like the Craig Sweeny case Jack Straw taking his responsibilities very seriously Appropriate sensitivity on both sides No guarantee that there will not be another damaging incident
Finally No reforms of the judicial system are contemplated which may affect the independence of the UK judiciary THE END