Public Law I - Sources of Power PDF

PUBLIC LAW I – SOURCES OF POWER Judicial independence Dr Tarik Olcay University of Dundee Week 8  LEARNING OBJECTIVES Explain the importance of judicial independence Explain the institutional and individual guarantees for judicial independence Explain...

PUBLIC LAW I – SOURCES OF POWER Judicial independence Dr Tarik Olcay University of Dundee Week 8  LEARNING OBJECTIVES Explain the importance of judicial independence Explain the institutional and individual guarantees for judicial independence Explain the reforms introduced by the Constitutional Reform Act 2005  JUDICIAL INDEPENDENCE Legislative and executive branches – political Judiciary – non-political Not elected No political accountability to anyone Essential the judiciary is independent – government should not be able to put pressure on it Independence of the judiciary requires strong separation between courts and the other branches Two main ways to achieve Institutional guarantees Guarantees for individual judges  INSTITUTIONAL GUARANTEES Main institutional reform: Constitutional Reform Act 2005 Put the rule of law and judicial independence on a statutory footing Equivalent provisions contained in the Judiciary and Courts (Scotland) Act 2008, s 1 and Justice (Northern Ireland) Act 2002, s 1 Significant move towards a more defined separation of powers in the UK Led to: Changes to Lord Chancellor’s position New Judicial Appointments Commission Elimination of Law Lords  new Supreme Court  CONSTITUTIONAL REFORM ACT 2005 Lord Chancellor Previously had major powers in all three branches of government Legislative: speaker of the HoL Executive: cabinet minister Judicial: head of the judiciary in E&W; Law Lord  Fusion of powers Major reforms No longer Speaker of the House of Lords – replaced by the Lord Speaker (elected) Lord Chancellor (as Secretary of State for Justice) is the Cabinet minister at the head of the Ministry of Justice (but no longer head of the judiciary in E&W) Statutory duty to defend judicial independence No longer able to sit as a judge on the Supreme Court Changes to the way judges are appointed  CONSTITUTIONAL REFORM ACT 2005 Appointing and dismissing judges Previous method was shrouded in secrecy Establishment of the Judicial Appointments Commission (JAC) JAC makes a decision on candidates, which are then passed on to the Lord Chancellor Lord Chancellor can accept, reject or ask for reconsideration of a candidate, but cannot name a new one If candidate is rejected the Lord Chancellor is obliged to accept the next recommendation The 2005 Act also sets up how dismissals should operate  CONSTITUTIONAL REFORM ACT 2005 The UK Supreme Court Came into function in 2009 Now has its own building, outside the House of Lords, and website Not a traditional constitutional court (still no general power of constitutional review) Has taken over devolution issues – towards federalism?  INDIVIDUAL GUARANTEES Security of tenure Senior judges in E&W hold office until retirement Judges can be dismissed in one of two ways: On medical grounds (by the Lord Chancellor and a relevant senior judge) By the King on the resolution of both Houses of Parliament Equivalent provisions in Scotland A Court of Session judge may be removed by the King on the recommendation of the First Minister made with the approval of the Scottish Parliament Scotland Act 1998, s 95(6), (7) Different removal mechanisms for sheriffs and justices of the peace The Judiciary and Courts (Scotland) Act 2008; Criminal Proceedings etc. (Reform) (Scotland) Act 2007  INDIVIDUAL GUARANTEES Salaries of senior judges cannot be reduced Senior Courts Act 1981, s 12(3) Immunity from suit Judges cannot be sued for damages in respect of words spoken while exercising their judicial functions Sirros v Moore QB 118, 136 (Lord Denning MR) Primrose v Waterston (1902) 4 F 783, 793 (Lord Moncrieff)