Judiciary is one of the pillars of the state like executive and parliament in UK and upholds the doctrine of

rule of law. All senior and part time judges come under this and are expected to show great leadership
skills, be fearless in giving decisions and display legal accuracy as well as moral courage. The institutional
independence of the judiciary is also of utmost importance so that it can be free from any influence
from the executive or politicians. Before the passing of the constitutional reform act 2005, the head of
the judiciary was the Lord Chancellor. Anciently, the role of the lord chancellor was only as the secretary
of the medieval monarchs of England but by the 13 th century they became the most senior judge in the
country.

Prior to 2005, the Lord Chancellor was appointed by the prime minister and once appointed he had a
seat in the parliament and was responsible for the administration of ministry of justice thus having a
significant role in the executive. The lord chancellor also had a ceremonial role as speaker of the house
of lords thus having his role extended to parliament as well. This position of the lord chancellor was well
managed and did not raise any concerns regarding the influence it had on the impartiality and
independence of his decisions. Not until the passing of human rights act 1998 which changed
everything. Article 6 of ECHR required there to be a fair trial by an independent and impartial tribunal.
This issue was considered in the European court of human rights case of McGonnell v UK [2000] in
which the role of the bailiff of island of Guernsey as being a mix of executive and judiciary was at
question. It was declared that this was contradictory to article 6 of ECHR as the bailiff performing the
roles of the executive and the judiciary did not make him independent and impartial. It was also stated
that the test for impartiality and independence was of objective nature that would an ordinary
reasonable man think of the bailiff as being independent or not and not of subjective nature i.e., would
the bailiff himself and his decisions free from any executive bias. This was a highly celebrated case and
to some extent displayed the position of the lord chancellor of UK. Hence, as a result of the
incompatibility of Article 6 of ECHR with this multi rolled judiciary, the constitutional reform act 2005
was passed in which the position of lord chancellor was given to Lord Chief justice as the head of
judiciary. A new judicial appointment committee (JAC) was established to reduce the role of lord
chancellor in appointment of judges. The purpose of these changes was to glorify the doctrine of
separation of powers and to increase public confidence in the justice system.

Protection of judges 3 perks

The independence of the judiciary was laid down in the historic act of settlement 1701 which also
protected the judges from dismissal without good reason and now it has been further codified in s.3(1)
and (6)of CRA 2005 which states that the executive is not to interfere in any of the judicial decisions.
After the enactment of CRA 2005, the role of the lord chancellor was reduced to being a member of the
cabinet and protector of the independence of the judiciary and court. As a matter of fact, the appointed
lord chancellor also has to swear an oath to defend the independence of the judiciary. However,
recently in the case R (Miller) v Secretary of State for Exiting the European Union [2016] this duty of the
lord chancellor was very heavily criticized by the bar council, media organizations and individuals. The
decision reached by the high court was that the government had to obtain parliamentary authorization
before it could start the process of UK leaving the EU. The lord chancellor did issue a statement
defending the independence of the judiciary but it was considered as too late and that she had breached
her duty under s.3 of CRA 2005. Learning from her mistake, she immediately made a statement
defending the independence when the case went to appeal in the supreme court.
As can be seen in the above discussion that independence of judiciary is the main requirement which
ensures that justice is being done and that there is no unnecessary influence upon judges. Certain
protections and perks are provided to judicial members so that they do not work in fear and stay free
from the evil thoughts of bribery. Firstly, the protection of independence is reinforced by security of
tenure and protection against dismissal. Prior to the 1700’s, the kings were bound to dismiss judges if
they disapproved of their decisions but after the English civil war and most importantly the Act of
settlement 1701 the judges were protected against wrongful dismissal and promised tenure for life
unless they committed some grief misbehavior and can only be removed by the monarch after a vote by
both houses of parliament. This protection is now governed by the senior courts act 1981 and CRA 2005.
However, the judges below the level of high court can be dismissed by the Lord Chief Justice on grounds
of misbehavior that undermines the legal and moral capacity of the judge. No approval of parliament is
required for this and this power for the first time was practiced in 1983 when a circuit judge was found
guilty of smuggling tobacco and alcohol on his boat into England. Until recently, Constance Briscoe, a
circuit judge was charged for allegations that she corrupted the course of justice in 2014 and was
imprisoned for 16 months after being found guilty. Misbehavior also includes drunk driving and driving
offences. One drunk driving offence may not be considered enough for dismissal but more than 3 will as
held in the case of judge MacArthur in 1997 when he was told to resign by the Lord Chancellor upon his
3rd drunk driving charge. In the case of driving offences, more then 6 penalty points on a driving license
of a potential future lower level judge may prevent appointment. This protection can also be seen in the
Pinochet case where Lord Hoffman was still not dismissed despite the fact that he had committed a
serious error of judgment.

The second protection provided to judges is protection from suits. This applies to all the judges,
whether they be of a superior, lower or tribunal court. Either they are wrong or right, the judges cannot
be held liable as to uphold their independence and allow them to work without any fear and prejudice.
This can be seen in the case of Sirros v Moore [1974] where a judge wrongly ordered someone’s
detention. Lord denning held that the immunity of judges must be upheld in extreme conditions as long
as it is in good faith. Judges cannot be held accountable as long as they are acting within their
jurisdiction and for justice or they honestly believe that they are acting within their jurisdiction. He
further explained that if the judges are involved in corruption, extreme misbehavior or have corrupted
the course of justice then they can be held liable for criminal charge. In the case of convention rights,
the immunity of judges is explained in s.9(3) of HRA 1998 as was of question in the case of Begraj v
Secretary of State for Justice [2015] where it was argued by the claimants that their right to fair trial
under article 6 was infringed as the defending party had become involved with the police. The principle
or Sirros v Moore was upheld and s.9(3) of HRA 1998 was given a broader definition.

Lastly, in order to keep judges away from the need for other income sources and corruption, they are
given very handsome salaries which are protected through law that they will not be reduced but can
be increased during the time they hold office. Security of judicial salaries was initially set out by s.3 of
the Commissions and Salaries of Judges Act 1760 but it was repealed in 1879. However, in today’s time
the protection to judicial salaries is given by different statutes and it exists in two forms. Firstly, the
salaries of judicial office holders can be increased but not decreased and secondly the salaries of
superior court senior judges are to be given through a consolidated fund rather than the executive
finances. The consolidate fund helps the judges to keep free from the thought and pressure that the
executive may hold or limit their salary if they did not act upon their intention. The salaries of judiciary
are reviewed annually by senior salaries review body (SSRB) and in 2018 an extensive review was carried
out by SSRB in which it was found that future appointments had become very difficult due to less
interest of aspiring applicants due to less pay. The judges of UK being of historical value and bringing
millions of pounds of business to UK were not left like this and there was a 25% increase in their salaries.

Conflict of interest in cases.

For judges to be impartial and free from bias, it is important for them not to have any personal interest
in the case they are working on. A long-standing Latin term is ‘nemo judex in causa sua’ which means
that a judge with an interest must decline to hear a case. The judge must not be inclined to the priorities
of any one party and must decide on the facts provided there and then. If not, then the impartiality of
the judge is at risk which would undermine public confidence in the justice system. The judge must
consider objectively before taking on a case that will a reasonable person who is well informed of the
facts of the case may consider the judge to be biased or even if there is a risk of the judge being biased
then the judge should recuse himself from the particular case.

The circumstances and results of even a single judge in a case being biased can be seen from the
Pinochet case in which General Augusto Pinochet was arrested in 1998 in England while undergoing
medical treatment for the voluntary acts of violence he did in Chile in 1973. Pinochet tried to claim
immunity but his claim was rejected by a panel of five judges including Lord Hoffman. The international
anti-torture campaigning group Amnesty International became involved in the proceedings of which
Lord Hoffman was a silent director and also his wife worked for amnesty. Upon finding this, Pinochet
petitioned for a review of the decision on the impartiality of Lord Hoffman and that due to his particular
interest, the decision was biased. The house of lords held that due to affiliation of Lord Hoffman with
Amnesty international, it automatically disqualified him from the case no matter he had disclosed his
interest or not. A mere suspicion of bias can make the judge not capable of hearing the case.

The test for assessing judicial impartiality was to done through the test provided by the house of lords in
the case of R v Ghosh [1993] which was applied in the latter case of Locabail (UK) Ltd v Bayfield
Properties Ltd [1999]. The risk of the judge having interest in the case due to financial or social reasons
was to be done by the reviewing court and not the judge. If an interest was proved to exist then it would
result in automatic disqualification. If the judge becomes aware of any matter which will seriously put
him in the danger of being biased then he must recuse himself from the case before the hearing.
However, after the enactment of Human Rights Act 1998 the test for assessing potential judicial bias was
changed by the court of appeal in the case of Director General of Fair-Trading v Proprietary Association
of Great Britain [2001]. The test is now of objective nature which holds that an ordinary fair-minded
person having knowledge of the facts of the case may hold the tribunal or asses a possibility of being
biased. This approach was used and approved by the house of lords in the case of Porter v Magill [2001]

Judicial power

Judicial power is one of the pillars on which the UK constitution rests upon and functions well. The
power has been subject to many arguments and in each its increase is of spotlight. Many legal writers
and experts have described this as a shift from democracy to juristocracy. Professor Vernon Bogdanor
pointed out some reasons regarding the major increase in the power of judiciary. He pointed out the
facts that the general public had lost trust in politicians and did not consider the democracy as a viable
source to protect their rights. Judges having the power to review the actions of public bodies attracted
more affected victims to benefit from it and the number of cases of judicial review thus increased. The
enactment of HRA and its interpretation to be above the domestic law allowed the judges to more
affectively protect the rights of the minorities who would conventionally be ignored and not provided
justice.

Professor Bogdanor further stated that this exponential increase in power has made the general public
to look upon the judiciary to protect their rights, determine the limits of the executive and give effect to
the doctrine of separation power and rule of law rather than the parliament. However, this also comes
with its negative effects, the main being that judges have started taking political decision rather than
legal, which are to be taken by the parliament. In the case of R v Lord Chancellor ex parte Witham [1998]
in which the lord chancellor increased the prices of writs, court fees and removed the exception for
people on income support for not to pay. Laws LJ was of the view that access to courts at an affordable
price was a constitutional right and it could not be changed without any specific legislative control and
Lord Sumption argued that this was a matter of policy making and hence these matters should not be
dealt with by the judges. An issue which can be related to this was of closed material procedure (CMP)
in the case of Al Rawi v The Security Service [2011] in which the security service had some sensitive
evidence regarding the foreign nationals detained by authorities as suspected terrorists. The security
service did not want to disclose the evidence to the opposing party as it would not be in public interest.
They demanded CMP to be followed which was initially granted by the high court but on appeal the
court of appeal and the supreme court both disagreed that courts did not have such power to grant
CMP and it was a matter for the parliament to decide and not the judges.

Discussing the effect of Human rights act 1998 upon the increase in judicial power in can be seen from
the debate of Lord Mance that the executive has been deprived of the powers of imposing a ban on
homosexuals to serve in the armed forces, detention of suspected terrorists without trial and their
deportation because if they are deported and if in their country, they face inhumane treatment or a risk
of torture then UK would be held responsible for this according to HRA.

Combining judicial power with a case of judicial review (JR) makes a killer combination which can be
seen from the above case of Witham, in which exercising the judicial powers it was held that the lord
chancellor had exceeded his statutory powers. The process of JR uphold the doctrine of rule of law as
confirmed by Lord Cornwrath in the case of R (Privacy International) v Investigatory Powers Tribunal and
others [2019] that the principle of JR is the natural application of the constitutional principle of rule of
law. In these reviews, judges look at the illegality, fairness and irrationality of decisions of public bodies.
Many cases of judicial review have come to light e.g., the LSM case note case of R (on the application of
Maguire) v Her Majesty's Senior Coroner for Blackpool and Fylde [2019] but one of the earlier cases of
review was Pergau Dam case [1995] in which the secretary of state decided to spend £234 million on a
development project in Malaysia. It was found by JR that the secretary had exceeded his powers and the
money was in fact intended for certain arms sales.

The latest and the most controversial case was of R (Miller) v Secretary of State for Exiting the European
Union [2017] in which it was to be decided by the court that would there be a need for an act of
parliament for exiting the EU. This was heavily criticized on the grounds that this was strictly a political
issue and should not be interfered with by the judges. The supreme court recognized this fact in its
initial statement by stating that this was a complete political issue to be decide by the ministers and the
parliament and held that there was a need for an act of parliament for exiting the EU. This decision
clarified that the executive cannot glorify their prerogative powers and that there will always be a check
upon the decisions of executive by means of judicial review.