A Independence Judiciary and Separation of Powers

Three essential bodies exist in any state-the executive, the legislature and the judiciary. In the doctrine of separation of powers, there should be a clear demarcation of functions between these three institutions to avoid arbitrary or dictatorship. The concept of “independence judiciary” is linked to the idea of separation of powers most of the time. Judicial independence is required by the doctrine of separation of powers. While we do not have an independent judiciary, in the American sense, we do protect the independence of individual judge. [1] A previous Lord Chancellor, Lord Mackay has written that the independence of the judiciary is rightly regarded as a key principle of the constitution. [2] The independence of judiciary was confirmed in the Act of Settlement 1701.

Basically, central to the concept is that the main body of the judiciary-judges should not be influenced by the constraints of internal government and their policies in interpreting and applying law to their decisions. They should be independent of pressure from the Government and political and other groups, and therefore able to decide cases just and impartially.

Judges is the core of the judiciary and to what extent had the judges play their roles in English judiciary. As we all know, judges are those who being appointed to determine the meaning and effort of law through their manipulation of the rules of precedent and statutory interpretation [3] and will be the final determiners of what English legal reasoning says about any particular sets of facts before them. Furthermore, judges are expected to deliver judgement in a completely impartial way through a strict application of the law, without letting their personal preference, or favour or fear towards any of the parties in the case to affect their decisions in any way. Judges are seen as people learned in the law, as a major contributor to the development and application of the jurisprudence of the “English Legal System”. [4] The popular image of judges is carries significant element of “truth”.

One might be expected that the judges’ behaviour was constrained according to the rules, means that they could not apply and interpret the law as what they think it should be. However, there is evidence to suggest that judges will ignore even that which is relatively clear law occasionally. [5] Judicial decision-making reflects the social background of the judiciary, it is clear that some judges’ decisions are based much more on their own views. Thus, for example, Geary has argued that Lord Denning: “His style of law making is such that there is no coherent pattern of legal through behind it…he expresses his own idea, his own morality, his own ideology…” [6]

Appointment of judicial is also an important subject to evaluate English judiciary. Prior to Constitutional Reform Act 2005, Lord Chancellor was responsible to the administration of the Supreme Court and county courts. The Constitutional Reform Act 2005 establishes a Judicial Appointments Commission (JAC) which has responsibility for the recruitment and selection of judges for the courts in England and Wales.

The Constitutional Reform Act 2005 divided judiciary related functions between the reformed ministerial office of Lord Chancellor and the Lord Chief Justice. Their aim was, according to Lord Falconer (Lord Chancellor), to put relationship between Parliament, the Government and judges on a modern footing. [7]

Essentially, the judiciary can be classified into inferior judges and superior judges. As far as inferior judges are concerned, a system of job advertisements for junior judicial posts exists. A similar system of advertisements and interviews were used for the appointments in the High Court but still not for positions in the Court of Appeal and House of Lords. However, this system received many criticisms as for many years there has been a “secrecy surrounding” the appointments of Queen Counsel-no reason is given why an apparently suitable candidate is being ignored and the files of the candidates kept by the Department for Constitutional Affairs are strictly private and confidential. [8] Lord Chancellor was a direct political appointment and Prime Minister also advised the Crown on the appointment of other senior judges’ office-holders such as Law Lords and Appeal Court judges. Moreover, Lord Chancellor retained his right to invite individuals to become High Court judges. Some individuals are still invited to become judges without having to apply. Even where a candidate applied for the post of High Court judges, the procedure was different from applicants at a lower level, for the reason that the candidate was not interviewed after the usual consultation process with the senior judiciary and the candidate own referees. Lord Chancellor simply decided whom to appoint on the basic of that consultation process. The former Court of Appeal judge-Sir Ian Glidwell said that: [9]

Lord Chancellor should cease to be responsible for the selection and appointment of High Court judges

The responsibility for such appointments should be transferred to a newly created independent body, a High Court Appointment Board

The appointments to the High Court should only be made from among people who have made application for the position

Although the principal qualification for judicial office was experienced of advocacy and the qualification had been fixed down, for example, one to be appointed as High Court judges must fulfil the below: [10]

the holding of a post as a circuit judge for two years

possession of a ten years High Court qualification under Courts and Legal Service Act 1990

However, there was an appointment of an academic and member of the Law commission, Professor Brenda Hoggett, to the High Court in December 1993, sat as Mrs Justice Hale, was the first High Court judge not to have a career as a practising barrister, although she qualified as a barrister in 1969 and was made a QC in 1989. [11]

To ensure judicial integrity, all judges-irrespective of rank and including the lay magistracy, have immunity from legal action in the performance of their judicial functions. It is called “judicial immunity from suit”, it means that judges cannot be sued for actions done or words said in the proceeding of their judicial functions. In Sirrors v Moore [1975], [12] in which a judge wrongly ordered someone’s detention. It was subsequently held by the Court of Appeal, they cannot take any action against the judge although the detention had been unlawful as he had acted in good faith in his judicial capacity.

All judicial training from the induction of new magistrates to the training of the skills of the judges in the House of Lords is overseen by the Judicial Studies Board (JSB). [13] The Judicial Studies Board provides training and instruction in judicial skills to all part time and full time judges. Considering the importance of their work, judges receive very little training, even with recent changes. Our judges often begin their judicial careers with cases that may involve substantial loss of liberty for the individual, unlike the career judge system seen on the continent, where judges cut their judicial teeth in the lower courts, and gain experience as they move up to more serious cases. Judge Pickles has put forward the view that judiciary need more training in sociology, psychology, penology and criminology, and to learn more about how criminals are dealt with in other systems. [14] Lord Scarman has put forward similar views. Many have criticised the lack of training and continuing education for judges.

In R v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No2) [1999] 1 All ER 577, [15] Senator Pinochet was the Head of State of Chile from 1973 to 1990 and during that period, appalling acts such as torture, hostage and murder were committed in Chile. He came to England for medical treatment in 1998 and he was later being arrested on an extradition warrant issued by the judicial authorities in Spain to face the trial for those offences. He then applied to the Queen’s Bench Divisional Court to quash the arrest warrant. Pinochet’s claim was rejected by 3:2 majority with Lord Hofffman voting but he decline to submit a reason judgement. [16] Prior to the hearing, Amnesty International which against such things petitioned for leave to intervene. After the decision of Pinochet case, it was revealed that Lord Hoffman was an unpaid director of the Amnesty International Charitable Trust. The case was later being heard by a new constituted as it was held that the decision which involved Lord Hoffman was invalid. The contention is that there was a real danger or reasonable apprehension or suspicion that Lord Hoffman might have been biased, that is to say, it is alleged that there is an appearance of bias not actual bias.

In Howell v Lees Millais [2007] EWCA 720, [17] the judge-Peter Smith J. was heavily criticised as he refused to withdraw himself from hearing the application which he had been negotiating with one of the parties and ending in disappointment and animosity. The party was from a firm which the judge had been negotiated with that firm of solicitors to take up some sort of consultancy if he retired from the bench. Two days before the due date for the hearing, QC wrote immediately to the judge, referring to the discussions between the judge and AG, and to the fact that the application would be hotly contested asked the judge to recuse himself but he refused. The judge wrote back saying there was no “reasonable perception of judicial impartiality in this case”. The application was renewed in court, with a partner from the firm appearing as a witness. The judge insist not to recuse himself so the claimants applied to the Court of Appeal .The judge was referred to the Office for judicial Complaints for his failure to recuse himself and was reprimanded. [18]

In Dimes v Properties of the Grand Junction Canal [1852] [19] , a public company acquired land to construct a canal. Dimes, who had an interest in the subject land, ejected the owners of the company. The company’s title to the land was subsequently confirmed by the Vice Chancellor who ordered Dimes from blocking the canal. The Lord Chancellor- Lord Cottenham, who in fact occupied the post of the highest judge, was also a shareholder in a company which was one of the parties to the case, confirmed the Vice Chancellor’s action. The House of Lords held that the Vice Chancellor order were not affected by the disqualification of the Lord Chancellor.

In Davidson v Scottish Ministers [2004] UKHL 34 [20] , Davidson was a prisoner who sought an order requiring the Scottish Ministers to transfer him from one prison to another. Lord Hardie sat on the court that refused to issue the order on the ground that such mandatory orders were not available against the Scottish Ministers. Davidson discovered that Lord Hardie, had advised the House of Lords during the passage of the Scotland Bill that

such orders would not be available against the Scottish Ministers. Davidson appealed on the ground of bias; the House of Lords held that the Porter v Magill test for apparent bias was satisfied, and quashed the decision.

Conclusion

The appointment of judiciary is still over secretive and no reason was given why the apparently suitable candidate was being rejected. Moreover, Lord Chancellor, as a politician, retained his right to choose High Court judge is not suitable as he could be swayed by political factors in the selection of judges. Since there is qualification and system for the selection of judges, but there is always exception emerge in English judiciary, for example, the appointment of Mrs Justice Hale and the discrimination of Lord Chancellor which I had mentioned before. Is a judge which being appointed in secrecy surrounding can give decision impartially or is he or her is qualified to be a judge? Is he or her well learned enough for such a job? I do doubt about their capacity and I wonder why the English judiciary do not follow the system some of the time since the qualification for the posts was fixed down.

It can be shown from the statement above that training of the judiciary received lots of criticisms too. No one can be born to be a good judge, isn’t it? I think that training for those who hold such post is important. They may be experienced as lawyers, but the skills needed by a good lawyer are not identical to those required by a good judge. The lack of training for judges will surely bring lots of problems to the judiciary and even to the society. One may not be able to give just and impartial decisions as they are not learned enough and lack of experiences for being a judge.

According to the statement made by Geary, Lord Denning possess the style of law making and it cannot be denied that Lord Denning as a senior judge has great influence to the English Judiciary as those decisions which made in superior court are bound by those who sit in inferior court. As mentioned before, judges should interpret the law according to the will of Parliament but not their own views or opinions. Is Lord Denning being too confident in having such behaviour? I think he is and it should be avoided as rule making power should be given to the Parliament and that is not what a judge should do. It would end up with giving the decision which contrary to Parliament’s will and would deprive a citizen’s constitutional right.

I do agree with the existence of the immunity system and it seems essential for all the judges in English judiciary if they are to operate as independent representatives as they would make the honest decision to the law without fearing of being sued. However, in my humble opinion, I think that there would definitely consist of some “black sheep” in the English judiciary which abusing this privilege by giving wrong opinion or decision to the law as long as they are already immune. They would certainly break the integrity of judiciary though they were minority.

Judges ought to decide the cases and treat the parties before them impartially in order to protect individual’s right. However, there is evidence in many cases show that judge was biased. One cannot and should not behave in that way when they hold the post as a judge. Once they were bias they lost integrity in themselves and even in the English judiciary. Judges should always bear one rule in the mind- no man may be a judge in his own cause (nemo debet esse iudex in propria causa). In Howell v Lees Millais [2007], the judge who had been advised by the QC insists on involve in the case which he had a relationship with one of the parties for not recusing himself. All the judges were human being too and they should avoid themselves from hearing cases which implicate themselves in order to act fairly.