6.Judiciary

The Judiciary plays a vital part in British Politics. The Judiciary should be apolitical and any judgements made, for example on government legislation, have to be made without any form of political bias. However, various aspects with regards to the Judiciary have been questioned recently: judicial independence; judicial neutrality and judicial supremacy.

6.1 Judicial Independence

As government has got larger in all areas of society, there are some who claim that not enough is being done to protect those in society who might feel that their rights are being infringed and trespassed on by the government. What parts do the courts play in this?

The main area of contention is whether the judiciary is independent from government influence so that it does protect the rights of the ‘small’ people in society. If it not independent from government influence, is this an example of the extension of executive power into all aspects of life that some have spoken about? If the judiciary is not independent, what is there to protect people in society?

Judicial independence is seen as being the most important part of the British legal system. So what is judicial independence?

The courts of Great Britain are Crown courts in that their jurisdiction is derived from the power of the Crown. The executive has taken over the role of the Crown as part of the Royal Prerogative.

The executive is not allowed to delay the course of ‘common justice’. This is a ruling that goes back over 100 years. The executive is also not allowed to force judges into acting in a manner that is anything other than impartial.

In 1701 in the Act of Settlement, judges in superior (higher) courts were given the right to remain judges as long as they exemplified “good behaviour”. Judges could only be removed from office if they were guilty of “bad conduct”.

For the vast number of judges, this does not happen and this gives them security of tenure within the job – the argument being that such security assists their independence from government pressure in that they can only be removed for very specific grievances (which do not include unusual sentences for criminals) which do not include failing to support the government and its policies.

Judges should not be seen as civil servants. The Crown on the advice of the Prime Minister and/or the Lord Chancellor appoints them. Traditionally, judges have been barristers before being appointed. However, solicitors can now be judges in the Crown Court. There is no one Whitehall office that looks after the affairs of judges – which is why they cannot be seen as being civil servants. It is also this that supports the view that the judiciary is independent of the government. Independent professional bodies (who members are appointed by those in the profession) scrutinise the work of both barristers and solicitors – the argument being that those appointed to the bench are of the highest calibre and are at the top of their professional tree.