Judicial Independence

2016 May ZA
4. What is meant by ‘judicial independence’ and why is it thought to be
essential to the rule of law?

2017 May ZA
6. “The independence of the judiciary is the cornerstone of the rule of law and is vital to
our constitution and our freedoms. The reputation of our judiciary is unrivalled and our
judges are people of integrity and impartiality.”
Describe the two key aspects of judicial independence and explain how institutional
judicial independence is constitutionally significant.

2020 October ZA Q2
2. It is accepted in our society that the rule of law requires there to be judicial
independence. Explain what is meant by judicial independence and discuss why it is
thought to be essential to the rule of law.

1. Explain judicial independence

2. Discuss why its essential to RoL

1. What is judicial independence- define and explain

2. Personal and institutional

May 2021 ZA Q6
8. ‘Judicial independence is a prerequisite to the rule of law and a fundamental guarantee
of a fair trial. A judge shall therefore uphold and exemplify judicial independence in both
its individual and institutional aspects.’ (The first of the Bangalore Principles.)
Discuss.

1. Why is judicial independence important for the rule of law?

2. Not special for anybody
3. Deconstruct and define the question
4. Fair trial - judicial independence - connects to the rule of law
5. Judges free from bias, prejudice and political pressure
6. Bias thT JUDGES are disqualified from certain cases if their impartiality will be
questioned
7. The appearance
8. Impartiality
9. Confidence and appearance
10. Fair minded and informed
11. Objective test of apparent bias is used
12. Why appearance important, people must confident that even the appearance of bias is
ruled out
13. Personal independence guarantees rule of law
14. So th case is dealt with solely based on the merits without any other external influence
15. Personal independence - pinochet
16. Lord Hoffman
17. Judge himself will step down
 18. This is where the judiciary as an institution
19. This was started of in the 17th century ‘CRA 2005
20. Institutional independence
21. Salary protection, immunity from suit, tenue security
22. Constitutional importance
23. Lord Slin

24. Look at what rule of law actually is

25. See if judicial independence is a requirement
26. 8 rules regarding RoL
27. Other explanations by Dicey,
In which the judges impartiality may be reasonably questioned
Personal
Pinochet
Lord hoffmann Amnesty case
Judges must be and also appear to be impartial
Threshold for disqualification is very high
Appearance is sufficient for disqualification
Right to a fair trial is an important tenet of rule of law
So personal independence being held at a high threshold is not unusual
Mcgonnell

2023 May ZA
Question 2
‘Judicial independence means that judges must be free to exercise their powers without
interference from litigants, the state, the media or powerful individuals or companies.’
Discuss.

Define judicial independence. Define it. Scholar’s definition. Talk about it. What does it mean?
www.supremecourt.uk/docs/guide-to-judicial-conduct.pdf
Guide to judicial conduct 2019. Two types. Elaborate on each type
Formal judicial independence was recognized only after the 18th century
Before that, the monarch could dismiss judges if it was not satisfied with their judgements
After the English civil war, formal independence of the judiciary was recognized
Changes to the role of the parliament
Confirmed in the Act of Settlement 1701
After that, they had tenure of life
And they could not be dismissed unless on the grounds of misbehaviour
Talk a bit about origin and evolution
Judicial independence and the position of the Lord Chancellor
Pre CRA 2005- the Lord Chancellor held 3 positions- head of the judiciary, cabinet minister,
speaker in the HoL
This was a blatant violation of separation of power, and meant that the judiciary was not
absolutely free
However, this was not concerning
Post HRA 1998, only was the question considered because Article 6 of the ECHR was violate –
right to a fair trial

Next para
Talk about the case of Mcgonnell v UK
Case of the Bailiff of Guernsey
Bailiff was part of both the judiciary and the executive
So him sitting at the case, obstructed the independence of the judiciary
The ECtHR said that the test of independence is objective
ECtHR also said that the question is not whether the court is actually impartial, but whether it
can be seen to be impartial to a reasonable observer
If it seen to be impartial, it is not independent and the judge must recuse himself
Appearances
Question is whether it appears objectively that the court is impartial
In the eyes of the people, does the court seem to be impartial
Case spoke about the bailiff, but it is analogous to the position of the Lord Chancellor
What happened subsequently was that through the CRA 2005, the Lord Chancellor was
removed as the head of the judiciary
He has been replaced by the Lord Chief Justice
The JAC has now been established, which limits the role of the Lord Chancellor even more

How has judicial independence been codified now ?

CRA 2005 - section 3.1, 3.5
Miller case
Lord Chancellor received criticism

Measures taken to improve judicial independence

Security of tenure
Immunity from suit
Reasonably generous pay - avoid bribery and corruption
Salary protection ?
→ can’t be reduced

Judges do not have to be impartial in fact, only an appearance of impartiality is required

This is because only when the judiciary is impartial will public confidence in the justice system
be upheld
In case of apparent or appearance bias, the judge must recuse himself

Pinochet case
Lord Hoffman
Amnesty

The Judge must recuse himself if there is a real danger or possibility of bias
It is for the reviewing court to make the decision
If there is a real risk, he must be dismissed
However, if a judge is shown to have an interest in the outcome of a case, he will automatically
be disqualified locobail
Guidance of recusal before the HRA 1998
Director general of fair trading v Proprietary association of Great Britain
In this case, the CoA modified the test
The appropriate test is whether a fair minded observer would conclude that there was a real
possibility of bias
This position was later approved in the HoL in the case of Porter v Magill

Conclusion
Recap points
Show how important judicial independence is
In the absence of it, decisions will be biassed
How is judicial independence important to uphold the rule of law and to protect individual’s rights

Judicial independence and the position of the Lord Chancellor

Responsibility to uphold Judicial Independence

After all, it is about allowing the judges to exercise their power free of external influences and
interferences by the state and its branches

General remarks
This question relates to Topic 12 of the module. It gives candidates the scope to discuss both
the institutional and personal independence (impartiality) of the judiciary. Comparatively few
candidates chose to answer this question.
Law cases, reports and other references the examiners would expect you to use
A discussion of personal independence may include reference to Pinochet, Locabail (UK) Ltd v
Bayfield Properties Ltd and Director General of Fair Trading v Proprietary Association of Great
Britain. In the context of media criticism of the judiciary, reference could be made to R (Miller) v
Secretary of State for Exiting the European Union. Candidates should discuss the Constitutional
Reform Act 2005.
Common errors
The best answers separated out the discussion of personal and institutional independence
showing that they understood the difference between them. Weaker answers failed to
demonstrate an understanding of this difference.
A good answer to this question would…
discuss why judicial independence is important, in relation to the rule of law, public confidence in
judges and fair and impartial decision-making. When discussing institutional independence,
candidates should mention the law before and after the Constitutional Reform Act 2005, and the
significance of the changes made by the
4
Act. There would also be a discussion of personal independence with reference to relevant case
law.
Poor answers to this question…
did not distinguish sufficiently between personal and institutional independence of the judiciary
or did not explain the reasons for the importance of judicial independence.

ZB
Question 2
‘It is vitally important in a democracy that individual judges and the judiciary as a whole
are impartial and independent of all external pressures so that the public can have
confidence that their cases will be decided fairly and in accordance with the law.’
Discuss.
INTRODUCTION
Define judicial independence- scholars’ definition
There are two types of judicial independence. Namely, personal judicial independence and
institutional independence. Personal independence- Refer to the guide on Judicial Conduct
2019. It is the constitutional responsibility of judges to impartially make judgements solely in
accordance with the law.

Institutional independence- Improper external pressure by the executive or the legislature,

particular pressure groups, the media, other judges, such as more senior judges should not be
felt by the judiciary as an institution.

The responsibility of judges has increased in the past few years as citizens look up to them to
uphold their rights in this democratic society when executive bodies act ultra vires. and thus
personal and judicial independence is vital. History of how judicial independence came to:
confirmation of it took place via the Act of Settlement 1701.

PARAGRAPH 1

POINT: In the case McGonnell v UK [2000], doubt was cast upon judicial impartiality, as it
appeared like there had been a breach in Article 6 of the ECHR. Separation of powers was
necessary. The codification of judicial independence took place via the CRA 2005. The Lord
Chancellor was replaced by the Lord Chief Justice as the head of the judiciary, as he was a
Cabinet minister as well. The Supreme Court replaced by the HOL as the highest form of an
appellate court in the UK→ Appearance of impartiality (QUOTE LORD BINGHAM in the paper
“a New Supreme Court for the UK.” A new independent Judicial Appointments Commission was
established to appoint judges as before appointment was in the hands of the crown and the
Lord Chancellor
PARAGRAPH 2
The 3 measures taken to protect judicial independence. They are immune from suit, tenure and
salary protection. In Sirros v Moore, the judge had been genuinely mistaken and carried out
proceedings with good faith within his judicial capacity, he was not liable. However, critics argue
that this places judges above the law (PARAPHRASE THE QUOTE Stephen Sedley from
Slapper and Kelly). Security of tenure- A senior judge can only be fired by the crown with the
permission of the HOL and the HOC or the Lord Chief Justice can dismiss the judges of lower
courts. Salary protection is governed by many statutes. However, in R v Valente [1985], salaries
of judges could be reduced under special circumstances. The SSRB, independently reviews the
salaries of judges (INSERT QUOTE from the REPORT)
3RD PARAGRAPH
Talk about personal independence. In the case of Pinochet, one of the judges was shown to be
partial as he had appeared to have an interest in the outcome of the case.The previous
judgement was invalidated and a new panel of judges were appointed: that is how seriously
personal judicial independence is taken.

2021 May Zone A

9. ‘Judges can only be independent if they are supported and protected by the state and
are scrupulous to recuse themselves even where there is even a hint of impartiality.’
Discuss.

General remarks
This question relates to Topic 12 of the module. The question gives candidates the scope to
discuss both the institutional and personal independence (impartiality) of the judiciary. Relatively
few candidates chose to answer this question.
Law cases, reports and other references the examiners would expect you to use
A discussion of personal independence may include reference to Pinochet, Locabail (UK) Ltd v
Bayfield Properties Ltd and Director General of Fair Trading v Proprietary Association of Great
Britain. In the context of media criticism of the judiciary, reference could be made to R (Miller) v
Secretary of State for Exiting the European Union. Candidates should discuss the Constitutional
Reform Act 2005.
Common errors
The best answers separated out the discussion of personal and institutional independence
showing that they understood the difference between them. Weaker answers failed to
demonstrate an understanding of this difference.
A good answer to this question would…
when discussing institutional independence, mention the law before and after the Constitutional
Reform Act 2005, and the significance of the changes made by the Act. There should be a
discussion of personal independence with reference to relevant case law. As directed by the
question, an answer should discuss the importance of judicial independence, in relation to the
rule of law, public confidence in judges and fair and impartial decision-making.
Poor answers to this question…
did not distinguish sufficiently between personal and institutional independence of the judiciary
or did not explain the reasons for the importance of judicial independence.

Accountability and the Media: “Parliament and the Judiciary: The Problem of
Accountability”
Speaker: Professor Vernon Bogdanor on February 9th 2006

One could, until very recently, teach British government while knowing almost nothing
about the law. The great classic works on British government, such as Bagehot’s
“English Constitution”, have no chapter on the law or on the judges. Today, however, to
understand British government, one has to understand something about the law and
something about the changing role of the judges.

It is worth beginning by asking ourselves how and why judges have come to assume a
more important role in the constitution. There are, I believe, a number of reasons.

In Britain, since the war, there has been a growing degree of discontent with the
workings of our democracy, which finds expression in widespread criticism of the
operation of representative institutions. Trust in politicians is not high. Traditionally, in
Britain, the main check on the depredations of politicians has been not the courts but
the alternation of power between the parties, what in my youth was called ‘The swing of
the pendulum’. But, since 1979, it seems that the pendulum has ceased to swing. We
have had the longest period of single party government in Britain since the Napoleonic
wars. Many have argued, whether rightly or wrongly, that both the Conservative
government which took office in 1979, and the Labour government which took office in
1997, have broken accepted conventions of the constitution. People have said that these
governments, both the Conservative government and the present Labour government,
are and have been stretching the British constitution to the limit, so that we are
approaching the condition, so famously identified by Lord Halesham as ‘Elective
Dictatorship’.

Nevertheless, what is striking to my mind is the very speed of the process by which
judges have acquired authority and influence in Britain. It is far more rapid for example
than the growth in power of the Supreme Court in the United States. The American
constitution was promulgated in 1787. But the Supreme Court did not strike down a
federal statute until 1803; it did not do so again until 1857, and of course the Bill of
Rights was not made applicable to the States until the 14th amendment was passed in
1868. In France, the Conseil Constitutionnel was established in 1958, but it did not
develop a constitutional role until the 1970’s. But in Britain, just 6 years after the
Human Rights Act has come into force, the judges are taking it upon themselves to
protect unpopular minorities against the government, against parliamentary majorities,
and against (it has to be said) the tabloid press.

But we do not notice these changes, because they occur not as a result of constitutional
amendment, but through the normal procedures of parliamentary government.
Procedure, it was once said, is all the constitution we poor British have. In the second
edition of his (misnamed) book, The English Constitution, which was published in
1872, Bagehot said “An ancient and ever altering constitution is like an old man, who
still wears with an attached fondness, clothes in the fashion of his youth. What you see
of him is the same. What you do not see, is wholly altered”. And it is certainly the case
that those living through a revolution are often unable to understand the experience;
true understanding only comes later.

It may be said that the judicial outlook of Judges is none of our business. Yet senior
Judges often do communicate their views to the informed public, through lectures and
articles in law journals. Moreover, it is a fundamental principle of a democratic society,
and in a sense the basic theme of this series of lectures, that those with power should be
accountable to the people, through their elected representatives. We would all agree, I
think, that the new supreme court should be accountable to Parliament for the use of
the public money given to it, and for the general discharge of its duties. Presumably the
new supreme court will provide an Annual Report to Parliament on how it has used the
money in its budget. It will no doubt also report to Parliament on the course of its work
each year. All of us would also, I am sure, agree with the late, and deeply lamented Lord
Alexander, former Chairman of the Bar Council, that it is not for Parliament to consider
the conduct of individual judges, nor to hold judges to account for their judgements,
nor to examine the merits of individual appointments or complaints against judges.

Clearly, then, judges cannot be accountable to Parliament, in the sense in which

ministers are accountable to Parliament. This of course imposes heavy responsibilities
upon the judiciary, the only one of the three branches of government to hold unchecked
and unaccountable power. The decision of a supreme court is in effect final, and this
may lead the unwary to suppose, that such a decision will always be correct. They
should remember the words of Justice Jackson, a Supreme Court judge in the United
States, who said ‘we are not final because we are infallible; we are infallible because we
are final’.

When their Lordships open their mouths extra-judicially …

23 March 2012 by Matthew Flinn

But what about when they are acting in a non-judicial capacity – when they are giving speeches or
participating in conferences or being interviewed? What about when the topic of discussion is not a
narrowly defined legal point but a more politically charged issue of public debate? The answer must
be the same. They have the right to express their views, but whether or not they should is a more
nuanced question. This was the topic selected by the Lord Neuberger MR in his Presidential Address
to the Holdsworth Club on 2 March 2012.