The Judiciary Lecture - Hands on Examples

A1 The separation of powers doctrine states that it is for the legislature (i.e. Parliament) to create law, they are the political representatives of the people and have been elected into their positions which means they should represent the public interests in the passage of legislation. However, there are certain ways in which is can be argued that judges do create laws.

- It was stated by Lord Diplock in Duport Steels Ltd v Sirs [1980] 1 WLR 142, 157, that "Parliament makes laws, the judiciary interpret them".

- Judges interpret existing legislation, where a term in an Act of Parliament is unclear it is the judges’ role to consider what the various interpretation of a term in a Statute is and choose between them.

-Judges are also required to uphold the rights within the Human Rights Act 1998 and make sure that statutes comply with EU law. The HRA creates provision for judges to read into a statutory provision its compliance with Convention rights, this might have a significant impact upon the legal application of a specific provision of legislation.

-Judges also create new rules of common law. These are intended to be incremental changes, but over many years and decades of areas such as criminal law where many offences are still bound by common law, judges have created large areas of legal regulation over time.

For example, in Regina v R (Rape: Marital Exemption) The Times, 24 October 1991; (1992) Cr.App.R. 216 the House of Lords effectively created a new criminal offence of the act of rape within marriage. It had previously not been an offence of a man to rape his wife, as it was argued that through the marriage contract women gave themselves to their husband and was unable to withdraw consent. The House of Lords acknowledged the changes in society that made it no longer acceptable to suggest that rape in marriage was not possible.

Contrast this case with C(A Minor) v Director of Public Prosecutions [1995] Cr App R 136, [1995] UKHL 15, [1996] AC 1, where the court acknowledge that is was not their role to abolish the doli incapax rule and that it was for Parliament to legislate on the matter, which they did in the Crime and Disorder Act 1998, section 34.

A2 Judicial appointments in the UK are made by the Queen with advice of the PM, and the Lord Chancellor. The Courts and Legal Services Act 1990 provided that solicitors could obtain rights of audience in the High Court and hence both solicitors and barristers (of 10 years call) could be appointed as High Court judges. It was also possible at this stage for circuit judges also to be appointed to the High Court.

-Widespread criticism of the lack of transparency and diversity within the judicial appointments process led to the passage of the Constitutional Reform Act 2005. A year later the Judicial Appointments Commission was created through an Order in Council in 2006.

-The Lord Chancellor requests that the JAC form a selection panel in the event of a vacancy for a senior judicial appointment. There is a mandatory composition for this selection panel including two members of the JAC, two judges and two non-lawyers. The panel makes a recommendation to the Lord Chief Justice who can reject or accept the recommendation.

-The establishment of the UK Supreme Court by the Constitutional Reform Act 2005 meant that law (rather than convention) now prohibits serving justices from taking an active part in the legislature. Judges will not obtain peerage by virtue of their membership on the Supreme Court.

- To fill a vacancy in the Supreme Court, an ad hoc Supreme Court Selection Commission is established, which must include a member of the Supreme Court, three members of the JAC and a non-lawyer.

- Despite these changes, little impact has been had upon the diversity of gender and race within the judiciary, particularly in the senior roles. Judicial Diversity Statistics 2015 (p.3) reveal that 12% of judges under 50 declare themselves as black or minority ethnic, which is in line with the general population in which 86% of the population describe themselves as white (Office of National Statistics, 2012)

-However, the gender diversity is less encouraging with the percentage of female High Court and Circuit Judges at 19.8% and 22.8% respectively.

- At the most senior levels, there are no Lord Justices of Appeal that describe themselves as coming from a BME background. There are 8 Lord Justices of Appeal who are female, which constitutes just over 20% of the total number (Judicial Diversity Statistics 2015, p.4)

- There are no Lord Justices of Appeal who have come from the professional background as a Solicitor-Advocate (Judicial Diversity Statistics 2015, p.5)

-Although throughout the judiciary there have been changes in the number of women, of ethnic minorities and solicitor advocates taking on roles, at the highest levels all three of these groups are still significantly underrepresented. Since it is the Lord Justices of Appeal who make the most important legal policy decisions, to be representative of the population as a whole, this situation needs to change.