Sunday, 12 June 2011

Explaining our Law and Legal System ... No.3 ... The Judges

The Supreme Court Justices 2009
"Let the judges also remember, that Solomon's throne was supported by lions on both sides: let them be lions, but yet lions under the throne; ..." (Francis Bacon' - 1561-1626 - Of Judicature ).

This post considers the Judges.  A further post will look at Justices of the Peace who are properly regarded as part of the overall judiciary but they are not part of the professional - legally-qualified - judiciary.

Overview of the judiciary - 

At the pinnacle of the legal world are the twelve Justices of the Supreme Court.  This court came into being on 1st October 2009 and is a creation of Parliament which enacted the Constitutional Reform Act 2005.   One of the justices is appointed as President of the Supreme Court - currently Lord Phillips of Worth Matravers and there is also a Deputy President - currently Lord Hope of Craighead.  The biographies of the present Justices are available on the Court's website.

Until 1st October 2009, the House of Lords had an Appellate Committee manned by the Lord Chancellor of the day and the Lords of Appeal in Ordinary - (often referred to as the "Law Lords").  The Supreme Court replaced this arrangement as part of a scheme to fully separate the judiciary from Parliament.  This was considered to be necessary to secure the separation of the judicial power from the legislative and executive powers.  In fact, no Lord Chancellor since Lord Irvine of Lairg exercised the historic right to sit and, since the creation of the Supreme Court, the Lord Chancellor is not entitled to do so.  The Lord Chancellor is now a government Minister with
an important justice portfolio (Secretary of State for Justice) and some ceremonial duties.  Those who were "law lords" on 1st October 2009 automatically became the first Justices of the Supreme Court.  Since then, appointees to the Supreme Court do not automatically receive a peerage, though Her Majesty has signified that they may have a "courtesy title" of Lord or Lady.  This arrangement appears to have caused some upset within the legal world and it seems to be, practically speaking, unnecessary.

Justices of the Supreme Court are appointed by Her Majesty who will, in practice, accept the name emerging from an appointment process set out in the Constitutional Reform Act 2005.  This process is itself the subject of investigation by Parliament which is considering whether the process is fair, independent, transparent and open.  There are also particular concerns about whether Parliament should, somehow, "scrutinise" judicial appointments - e.g. by U.S.-style "confirmation hearings."   Also, the question of whether the judiciary is sufficiently "diverse" has been raised.  This is likely to be answered by a resounding - "it is not" - though there is little doubt that the judiciary is of high integrity and legal ability.

Who should appoint our top judges -  6/6/11 - post on the UK Human Rights Blog by barrister Adam Wagner

Lord Bingham as Lord Chief Justice
Immediately beneath the Supreme Court is the Court of Appeal and its judiciary are the Lords (or Ladies) Justice of Appeal.  They are referred to as LJ (or, in the plural, LJJ) - e.g. Sedley LJ.   The Court of Appeal sits in two divisions:  Criminal and Civil.  Leading the Criminal Division is the Lord Chief Justice of England and Wales (currently Lord Judge LCJ) who is President of the Courts of England and Wales as well as Head of the Judiciary of England and Wales and also Head of Criminal Justice.  Leading the Civil Division is the Master of the Rolls (Lord Neuberger MR) who is Head of Civil Justice.  Biographies of the Lord Chief Justice and the Master of the Rolls are available via the Judiciary website (here) and also see the Senior Judiciary.

Next in the judicial hierarchy are the Justices of the High Court.  Upon appointment, a justice is assigned to one of the High Court's divisions - Queen's Bench, Chancery, Family.  Judges of the High Court sit not only at the Royal Courts of Justice in London but also at the larger court centres located in some of the principal cities of England and Wales.   They will adjudicate on important civil cases and, those appointed to the Queen's Bench Division, will try (along with a jury) the most serious and difficult criminal cases heard in the Crown Court.

Next come the Circuit Judges .  They take civil cases in the County Courts and they also try those criminal cases in the Crown Court which are not allocated to High Court Judges.    At this point, a further judicial title - that of Recorder - should be noted.  Appointment as a Recorder is usually a part-time judicial appointment sometimes seen as a first step on a judicial career.  Recorders also take criminal cases in the Crown Court.  There are certain Honorary Recorder appointments - e.g. the Recorder of Manchester.

Within the County Court will be found District Judges who undertake a considerable amount of the court's work.  In the Magistrates' Courts there are District Judges (Magistrates Courts) who are empowered to sit alone and have the full powers of the Magistrates' Court.

The Tribunal structure also has its judiciary.  There is the  Senior President of Tribunals who is also a Lord Justice of Appeal - (currently Lord Justice Carnwath - or Carnwath LJ).  Then there are Tribunal Presidents, Tribunal Judges and Tribunal Members (the latter are not necessarily legally-qualified).

Judicial independence -  When a judge is appointed, he or she will be required to make the judicial oath:

"I, _____, do swear by Almighty God that I will well and truly serve our Sovereign Lady Queen Elizabeth the Second in the office of __________, and I will do right to all manner of people after the laws and usages of this realm, without fear or favour, affection or ill will." 

(Note: there are alternative oaths for other religions or the appointee may affirm).

The oath makes it clear that the judicial appointments are made by the Crown and the office-holder's role is to act impartially.  Cases will arise involving persons from all walks of life.  To all he must do justice according to "the law" which is to be found in the decisions of generations of judges, in the Acts of our sovereign Parliament including those Acts which require the judge to take into account matters such as the decisions of courts such as the European Court of Human Rights and the Court of Justice of the European Union.  The judge has to be swayed only by what is relevant and must never exercise "favour, affection or ill-will" no matter whose case is before him in the court.

Judges have to be independent of the executive (i.e. the government and its Ministers).  The judiciary do not "take orders" from Ministers and, in exchange, Ministers are expected to be careful about any statements they make about judges individually or about their decisions.  Anything the judges do which is disliked can be altered by Parliament.  Tensions have arisen between Ministers and the judiciary in recent times over decisions, especially of the House of Lords and the Supreme Court, which Ministers have disliked and have been openly critical of.  Some see this as undermining the rule of law.  Perhaps this depends on the language used when offering criticism.  It is one thing to state that the government will seek to alter the law via Parliament.  It is another to state that the government is "appalled by" a particular decision as the Home Secretary recently did in Parliament.  Scotland gave us another example of unacceptable comment when the Scottish Justice Secretary risibly said that the UK Supreme Court Justices learned about Scots Law from visits to the Edinburgh Festival - see Herald Scotland.  Two of the Supreme Court Justices are very eminent Scots lawyers.

Judicial Independence is a very hard won and precious flower which does not flourish in many countries of the world.  It must be protected and each generation has a particular responsibility in this regard.  The independence of the judiciary is protected by the Constitutional Reform Act 2005 s.3.

Appointment etc. - Judges are appointed by the Crown.  There is now an independent Judicial Appointments Commission which advertises vacancies and deals with applicants via its "selection exercises."  Once appointed, the most senior judges (i.e. High Court and upwards) may not be removed from office other than by an Address to her Majesty of both House of Parliament.  This arrangement has been in place since the Act of Settlement of 1701 and offers considerable protection to the judges from political interference.   No judge in England and Wales has ever been removed using this procedure. There is an Office for Judicial Complaints and a Judicial Appointments and Conduct Ombudsman.  Such complaints do not extend to complaints about the actual decisions reached by particular judges.

There have been many of the reforms in recent years such as the Judicial Appointments Commission and the ability to have certain types of complaint investigated.  These processes are still developing and settling in as part of the overall legal system.  These innovations are preferable to the old system in which the Lord Chancellor of the day took secret "soundings" as to who might be appointed a judge and then "tapped the shoulder" of the appointee. No doubt further reforms will come along but reformers must not lose sight of the important foundations upon which the judiciary and our law have been constructed.


  1. One issue I find puzzling is the way certain judges seem to entrench themselves on the High Court in certain areas of law. The one who immediately comes to mind is David Eady, who seemed to take on the lion's share of privacy, libel and media cases, until he was replaced by Tugendhat.

    It is surely unhealthy for a single judge to be able to exercise the vast amount of influence that has accrued to Justices Eady and Tugendhat. Although their judgements can be appealed, this process is incredibly costly and time-consuming. Would it not be wiser to have a larger pool of justices to which these cases could be assigned in the first instance?

  2. I suspect that there is an element of "horses for courses" at play. Eady J was a member of the Calcutt Committee on Privacy back in 1989-90. Tugendhat J was joint editor of "Law of Privacy and the Media."

    See The Guardian September 2010 and The Lawyer July 2007.

    I am sure that you are right in saying it would be preferable to widen the pool of judges taking particular types of case. Let's not forget though that Eady J's approach received Court of Appeal approval - see McKennitt v Ash.

    Would it have been preferable for Parliament to have legislated the detail of a privacy law. I am not so sure. There is much to be said for allowing the judges to lead in this area since Parliament can always step in if it dislikes what they are doing.

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