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Broadbent: Public Law Directions

Chapter 6

1. How are judges appointed? Do you think the present system is an improvement on the previous system?

Judges are now appointed by the Judicial Appointments Commission rather than by individual ministers, with a view to establishing a more transparent system for appointments and ensuring that the judges represent the best of the talent available. Whether you think it represents an improvement on the previous system is a matter of opinion. In terms of whether the system produces better judges only time will tell.

2. How is the judiciary organised? Does the removal of the Lord Chancellor from his role as head of the judiciary make a difference to the judges?

The judiciary, like the courts, is organised in a hierarchical system with the Lord Chief Justice at its head. Currently the most senior judges are the Lords of Appeal in Ordinary, (the Law Lords), then the Lords Justices of Appeal who sit in the Court of Appeal, then the High Court judges. These comprise the senior judiciary. Other forms of judge include the circuit judges, tribunal judges, district judges and other lower forms of judiciary such as recorders. The changes to the functions of the Lord Chancellor brought about by the Constitutional Reform Act 2005 now mean that the role of the Lord Chancellor is more focussed and removes the objections that the role offends the separation of powers. Whether this makes any long term difference to the way in which the judiciary operates is, at the moment, a matter of speculation.

3. Why is judicial independence from political interference regarded as so important?

Judges have historically, and to the present day, fulfilled an important role in adjudicating on disputes between the state and individual citizens, and have to be independent of political processes in order to do their job effectively. Being seen to be independent is in many ways as important as actually being independent of government. This principle is recognised in the European Convention on Human Rights, especially in Article 6, the right to a fair trial, of which independence of the adjudicator is a key component.

4. What is the test for bias? Why is it so important that judges should be seen to be impartial when trying cases? Can judges ever be totally impartial?

The test for bias as laid down in Re Medicaments and subsequently approved by the House of Lords is as follows: “The court must first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased. It must then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility, or a real danger, the two being the same, that the tribunal was biased.” Judges need to be seen to be impartial as well as actually being impartial as there is an overriding need to uphold the integrity of the administration of justice and the principles of natural justice which require adjudication by an unbiased judge. Judges as human beings can never be totally impartial. The law on bias is concerned to identify those biases, actual or potential, that are unacceptable.

5. What powers do the judges have? Where do these powers come from?

Judges exercise power by virtue of their office as judges and from the court in which they sit. They derive these powers from statute or common law.

6. What limitations are there on the powers exercised by the judges?

Parliament can limit the powers of the judges by the ways in which it frames legislation even to the extent of excluding the jurisdiction of the courts.  Courts are generally hostile to such measures and will try to find ways of interpreting them to enable them to hear claims brought by individual citizens.  The courts recognise that there are limits to their jurisdiction in matters such as national security or where confidentiality is vital. Some of the lower courts have limits placed on their jurisdiction and this necessarily limits the power exercisable by the judges.