ELS

1. Judges Appointment & judicial independence ELS

2. Judicial independence is a principle intended to ensure the impartiality of judges. This is central to the rule of law. It is defined as the freedom of each individual judge to reach a decision within the law without undue interference or pressure from government. The system of appointment of judges in UK was structured to ensure that the above principle was supported. Judges selection/appointment

3. Prior to the revolutionary struggles of the parliamentarians, since the Norman invasion, the monarch held the power to choose the judges. With the victory of parliament, the independence of the judiciary was confirmed in the Act of Settlement 1701. Judges selection/appointment

4. Judges of the court of appeal and House of Lords are appointed by the Queen on the recommendation of the prime minister who is advised by the Lord Chancellor. The Lord Chancellor himself is of course appointed by the prime minister. The lower court judges are appointed by the Queen under the advice of the Lord Chancellor. Notes : The Lord Chancellor is from the judiciary, executive and legislative. Judges selection/appointment

5. The UK does not practice appointment of judges through a “career judiciary” which is prevalent in the European systems. In the career judiciary, promising candidates, after university education can apply to the post of magistrates etc and progress up the judicial ladder. In the UK on the other hand, the judges are selected, from the practice, with eligibility requirements of a certain number of years practice in the Bar. Judges selection/appointment

6. Alternative methods of appointment : 1. Carrier judiciary 2. Election of senior judges rather then by invitation or selection. 3. Parliamentary confirmation of appointment 4. Appointment commissions Judges selection/appointment

7. Judges and their hierarchy : Lord Chancellor – Lord Irvine – President of Chancery/Head of HL House of Lords – Lords of appeal in the ordinary (Law lords) Court of Appeal – Lords Justices of appeal High Court – High court judges – puisne judges County court – Circuit judges(more senior) & district judges Magistrates court – Lay magistrates (No legal back ground) Judges selection/appointment

8. The appointment of the senior judges is based on experience and qualification in the lower judicial offices. As regards appointment of Judges, as district judges and recorders, the lowest in the hierarchy, the appointment is based on experience of at least 7 years in practice in the bar. CLSA 1990. Judges selection/appointment

9. Process of selection : 1. Judges at the level of High court and Circuit bench are appointed by the crown, on the advice of the Lord Chancellor. 2. The lord Chancellor personally appoints the District judges, lay magistrates and members of some tribunals. 3. All appointments up to and including the circuit judges are on the basis of open competition..ie. Advertised applications. a) advertisement b) provide three names of judiciary and legal profession as referees c) written assessments are sought from these referees and other judges and lawyers, who are approached by the chancellor. This is known as the consultation process or “secret soundings..” 4. Shortlisting by panel of 3, judge, lay person, Lord Chancellors dept senior official. Judges selection/appointment

10. Composition of the Higher Court judges to “show” that appointments may not be from across the population, but only from a restricted, small,class. Statistics from the Lord Chancellors dept (website 2001) Female representation Only 01 lady, Law Lord. Only 02 in the Court of Appeal 8 out of 105 in the High Court. 44 out of 569 circuit Judges. Ethnic minorities representation Above circuit judges, there are no black or asian judge. Circuit Judge – 1% Recorder – 3 % District judge - 2% Judges selection/appointment

11. There is criticizm from the public that the judges are not from the cross section of the public and are in fact from the upper, middle class. A 1997 Labour research Survey, found that : “ ....even greater proportions of the judiciary attended oxbridge universities than a decade earlier...” Judges selection/appointment

12. A report on the Judiciary carried out in 1992, by the British section of the International Commission of Jurists, recommended that a Judicial Commission should be established to reduce the strain on the administration of justice, and should carry out the following functions : 1) the appointment of judiciary (appointment commission) 2) career development of judges 3) maintenance of levels of performance 4) deal with complaints about judiciary Judges selection/appointment

13. Weakness of the current system : 1) System overly secretive 2) Judges would be highly conservative or the type that would prefer to “tow the line”, as senior judges play an important role in the selection process. 3) Would again appear from the “oxbrige generation” 4) May favour members of the Bar compared to solicitors and others from non practicing fields. 5) Bias against the appointment of minorities and women Weakness in current system

14. Weakness of the alternative systems : Elections of judges 1) would politicize the selection 2) The legislative or executive could still have a hand in it. 3) Selection would not be based on meritocracy and the best man or woman may not be selected. Career Judiciary 1) Would result in selection of judges who lack experience 2) Would result in the lack of accountability between the judiciary and elected representatives. Judges selection/appointment

15. Judges Role / Function & Training of the Judiciary ELS

16. Judicial Independence Judges are expected to deliver judgment in a completely impartial manner through a strict application of the law, without allowing their personal preference, or fear, or favour, of any parties to the action, to affect their decision. Role of the Judiciary

17. Role of the Lord Chancellor : 1. He is the most senior judge, in the English Court (HL). 2. Speaker of the House of Lords. (Legislative) 3. Member of the executive, “Minister of Law”, in charge of the Judiciary. Role of the Judiciary

18. Judges Functions : 1. Settle disputes a) civil cases – deciding on issues of law, facts, evidence, setting out judgment. b) Criminal cases – deciding on issues of law, evidence, setting out judgment and passing sentence. 2. Case management in civil cases 3. Encourage alternative dispute resolution process 4. Provide feedback when asked to on the appointment of judges. Role of the Judiciary

19. In 1979 the Judicial Studies Board was established, for training of the judges. Judges accepted such training, although they were against it because of fear of interference and threat to independence, partly because the training was done by Judges, for the Judges. (weakness) But with more case management requirement and Human Rights Act 1998 needs, training of judges is a necessity. Training

20. Effect of the Human Rights Act 1998,(HRA) on the training needs of judges. The HRA 1998 incorporates the European Convention on Human Rights (ECHR) into UK law. S2.HRA 1998 states : When deciding on questions under the convention, courts must 'take into account' the case law of the European Court of Human Rights. S6 HRA states : It is unlawful for courts to act in a way that is incompatible with the convention. S3 HRA states : 'the courts are obliged to interpret legislation 'in so far as it is possible ' in a way which is compatible with the ECHR. Training

21. The above requirements of the HRA 1998 means, that the courts are obliged to interpret statues and apply their judicial reasoning, first with the view to assure compatibiltiy with the European Convention before they apply the usual rules of statutory interpretation and judicial precedent. The Judges need training to ensure that the above is understood, and applied correctly. Training

22. What improvements have been made in training judges ? 1) The government set aside 4.5 million pounds as a training budget for judges for the period (1999-2000), after the HRA 1998 for Human rights Judicial Training. 2) In 1999, the Judicial Studies Board, included new guidance for all judges on equal treatment issues such as disability, gender, and sexual orientation. 3) The Runciman Commission has also advocated improvement to judicial training. a) more resources be allocated b) refresher training courses every three years for judges c) training should include non judges with the judiciary Training