LAW 1021

08/11/2019

The Judiciary
Separation of Powers
Identified with a philosopher – Montesquieu

 Triadic conception of powers – means that power is divided into three different categories:
o powers exercised by a legislative body
o powers exercised by the executive
o powers exercised by the judiciary

Two rationales commonly advanced for the separation of powers:

- Functional efficiency
 It’s more efficient for certain kinds of decisions to be made by one body over another.
Operates under two assumptions:
 The skills necessary for determining legislative issues are different to the
skills required to exercising executive powers and adjudicating on them

- Prevention of Tyranny
 If all these functions are exercised by one body, you have a greater risk that the
concentration of all these powers will lead to a rule of tyranny. While it might be
more efficient, it could potentially pave way to make a dictator.
 This way, different bodies essentially control each other and hold one another
accountable, effectively balancing power between the three so no one body is
able to exercise tyrannical powers
 Parliamentary sovereignty – does this not fly in the face of the separation of powers if
parliament is supreme? Tension between the separation of powers and parliamentary
sovereignty in the sense that parliament can do as it wishes.
 How far is the judiciary influencing parliamentary sovereignty?

Implications of Separation of Powers

 The appointment of judges:
o Formerly appointed by the Crown, which always operates on advice of ministers. So
essentially, judges are appointed by the executive.
o Appointment of judges doesn’t involve a legislative circle – i.e. Parliament has no
involvement
 Parliamentary sovereignty = parliamentary privilege:
o Want to try to guarantee that the legislature has absolute freedom that other branches
will not interfere with in terms of creating law
 o Courts are usually very unwilling to intervene in legislative process – i.e. the process
of debate within legislature
 Bill of Rights 1689 Article 9 – “freedom of speech and debates or
proceedings in parliament ought not to be impeached or questioned in any
court or place out of Parliament.” Courts should not be able to intervene, stop
or control what proceedings go on in parliament
 Pepper v Hart [1993] AC 593 – raised the question of could you use
parliamentary debates as an aid to interpretation of statute? Yes, but only
certain elements can be used for interpretative aid – usually the proposer of
the Bill.
 Legitimacy of constitutional review in context of Parliamentary sovereignty
o Judges cannot decide whether ordinary statutes are or are not constitutional
o Judges can review Parliamentary statutes to conform with EU law, and the European
Convention on Human Rights, but are unable to declare the statute unconstitutional or
invalid. All they can do is declare incompatibility, which will get the statute reviewed
in Parliament.

Relationship between Executive and Legislative Power?

 Miller case in Supreme Court
 Judicial review:
o of legislation (very limited)
o of the executive (more freedom)

In carrying out these functions, how far should judges be independent in decision-making? And what
does ‘independence’ mean in this context? Independent from whom and what?

 Judges are given immunity from prosecution for any acts they carry out in the process of their
judiciary duties. You cannot prosecute a judge because you want the judge to be able to
express themselves without constraint. Not subject to criminal prosecution with regards to
carrying out their judicial function.
 Also immune to being sued for defamatory actions in terms of what they say about the parties
involved in a case.
 If there is a conflict of interest, the judge needs to declare it. In cases where the conflict of
interest is considerable, they must remove themselves from that case to be replaced by
another judge:
o Pinochet case – prosecution of Chilean dictator to extradite him to Spain to stand
trial. One of the judges in the case, Lord Hoffman, had a conflict in interest; one of
the parties involved in the case was NGO Amnesty International, and his wife sat on
the board of directors for it.
 Contempt of court – the notion that you are restricted in terms of what you can say about the
judges. There are constraints where someone is bringing the courts into disrepute – subjecting
the judge’s to inappropriate criticism. Used to be very strongly enforced.

Independence
Each judge should decide a case solely on the evidence presented in court, in accordance with
legislation. Person should not be subject to undue interest from external parties, and shouldn’t allow
judges to take into account decisions from outside influences. Decide case purely on evidence
provided by parties.
Responsibility of judiciary is to protect citizens against unlawful acts of the government, so there’s a
particular responsibility to be independent from the government.
What does this mean?
Shouldn’t be too closely acquainted with ministerial individuals.
Justice must not only be done, but also must seem to be done. Judges must be impartial in the
sense of being seen to being unbiased.

 McGonnell v United Kingdom [2000] 30 EHRR 289 (ECtHR)

o Article 6 ECHR – “everyone is entitled to a fair and public hearing within a
reasonable time by an independent and impartial tribunal established by law.”
o Case sees non-operation of separation of powers. Same person is a judge, executive
member and head of legislature. Violation of Article 6. The argument here was that
the Bailiff, having all these roles in three branches of government, the appearance of
bias was there. When he acts in a non-judicial capacity, he merely occupies these
positions ceremonially.
o Implication were generally significant in the UK at that time…
 Lord Chancellor was in almost exactly the same position – member of HoL
as legislator, member of the judiciary, and often in the Cabinet (executive).
What applied to the Bailiff looked as though it would also apply to the Lord
Chancellor in the UK
 At the time, HoL was the second legislative body, but also provided the
Supreme Court at the time (members of HoL adjudicated cases in the
Supreme Court).
 Case called into question the structure of the British constitution
 Brought about the Constitutional Reform Act 2005
 Constitutional Reform Act 2005
o Judicial independence now officially enshrined in law
o A duty on government ministers to uphold the independence of the judiciary, barring
them from trying to influence judicial decisions through any special access to judges
o Lord Chancellor’s role changed dramatically – judicial functions transferred to
President of the Courts of England and Wales; a new title given to the Lord Chief
Justice
o Lord Chief Justice now responsible for training, guidance, and deployment of judges
represents the views of judiciary in England and Wales
o Separation of House of Lords and Supreme Court – independent Supreme Court
established with its own independent appointments system, staff, budget and building
o Independent Judicial Appointments Commission – responsible for selecting
candidates to recommend for judicial appointment to Secretary of State for Justice.
Ensure that appropriate criteria for appointment are applied. Less likely a judge will
be applied because of political interference. Controls the extent to which
inappropriate candidates are submitted to the judiciary
o Judicial Appointments and Conduct Ombudsman – responsible for investigating and
making recommendation concerning complaints about the judicial appointments
process and the handling of judicial conduct complaints within the scope of the
Constitutional Reform Act

 How does this apply in a Northern Irish context?

 o Central Lord Chief Justice
 Represents views of judiciary, maintenance and proper distribution for …
o Justice (Northern Ireland) Act 2002 and 2004
 Reformed in Constitutional Reform Act 2005

Role of Press/Social Media

 In holding judiciary to account, w/o interfering w/ independence of judiciary
 Case study: Brexit

Accountability
Should judges be held accountable? If so, to whom?

Pre-1701
 Senior judges held office at the pleasure of the Crown
o Many examples of judges being removed from office for failing to decide cases in
accordance with the wishes of the monarch
o Notion of independence of judiciary is a pretty modern concept
 Security of tenure – judges. Act of Settlement has allowed for judges to be dismissed.
Accountability – Two Types:
1. Sacrificial Accountability – when individuals who fail to perform satisfactorily in their jobs
are sacked or encouraged to resign. No longer able to continue their role
2. Explanatory Accountability – individuals should be asked to give an account as to why they
have behaved in a particular way
a. Distinguish between institutional accountability of the judiciary and the
accountability of individual judges
Is this sufficient accountability?

Sacrificial Accountability
 Justice (Northern Ireland) Act 2004 – Lord Chief Justice can remove judges, on the grounds
of misbehaviour or inability to perform the functions of the judicial office, which does not
include the High Courts and above. So the ability to remove under this provision only applies
to the junior judiciary.

Explanatory Accountability
 Reasons why judge has decided a case in a particular way. Press provides an important role in
explaining to general public the reason a judge decided a certain way in a case (social media,
news articles, etc.). There is an exception; where issues of national security are involved, you
have the ability for courts to sit in private. This is highly controversial. In national security
cases, this concept of accountability will not apply.
 Have a right to appeal – go to another court to second guess previous court’s judgment. This
is a mechanism of accountability. Judges have their judgment dissected minutely in appellate
court, and sometimes have their decisions reversed and told that they are wrong.
  Is this an adequate mechanism to holding judges to account, given that the sacrificial method
doesn’t usually apply. How do you reconcile it?

Judges & Parliamentary Accountability

Both Houses of Parliament have the power to petition to the Crown for the removal of a judge from
the High Court or Court of Appeal.

 Originates in the 1701 Act of Settlement and is now contained in section 11(3) of the
Supreme Court Act 1981. Very rare to happen.
Under Parliamentary sovereignty, judge’s decisions can be reversed. In general, Parliament doesn’t
reverse the decision of a judge. So if you win a case in court, you will not generally be deprived.
Generally, Parliament reviews a particular decision and decides that that’s not what it wants to happen
in future, and may amend legislature as established or interpreted by a judicial decision.

 Burmah Oil Company Ltd v Lord Advocate

Composition of the Judiciary…

Does diversity matter? Why?
- Appearance of fairness and non-bias, independence and ability to judge.
- Meritorious appointment
- Lady Hale’s statement speaking on how the judiciary should be more open to people from
different background. I.e. more women and people of colour. Would this add or take away
anything? Would it lead to better decision making?
- Stats (England and Wales April 2019):
 32% of judges in the courts were women
 23% of judges in the Court of Appeal were women
 27% of judges in the High Court were women

- Stats (Northern Ireland):

 High Court and above – 14.3% female (2 recently appointed female judges)
 Below High Court – 73% male

Northern Ireland Judicial Appointments Commission

Lord Chief Justice + 12 members

 Statutory Responsibilities (Justice Act 2002)

o To engage in a programme of action to secure, so far as its reasonably practicable to
do so, that appointments to listed judicial offices are such that those holding such
offices are reflective of the community in Northern Ireland.
 Should there be more consideration to more gender representation, age representation, race
representation, disability representation, etc. etc.
Should the UK develop a system of Parliamentary approval of judicial appointments?
How far is judicial independence adequately protected or too much protected?
How far is the accountability of judges l
Who should be appointing judges and what should the judiciary composition be?
Input legitimacy – are those making judicial decisions legitimately informed
Output legitimacy – are the results made legitimate