Defining the Institutions. The institutions are the basic building blocks of a government. The institutions include the government, the executive, the Legislature, and the Judiciary. Each institution has a unique role in society and contributes to the governance of a country.
The executive may be defined as that branch of the state which formulates policy and is responsible for its execution. In formal terms, the sovereign is the head of the executive. The Prime Minister, Cabinet, and other ministers, for the most part, are elected Members of Parliament. In addition, the Civil Service, local authorities, police, and armed forces constitute the executive in practical terms.
The Queen in Parliament is the sovereign law-making body within the United Kingdom. Formally expressed, parliament comprises the Queen, House of Lords, and House of Commons. All Bills’ must be passed by each House and receive royal assent.
Parliament is bicameral, that is to say, there are two chambers, each exercising a legislative role although not having equal powers and each playing a part in ensuring the accountability of the government. By way of introduction, it should be noted that membership of the House of Lords is not secured by election and is accordingly not accountable in any direct sense to the electorate.
The House of Commons is directly elected, and a parliamentary term is limited under the Parliament Act 191] to a maximum of five years. In practice, the average life of a parliament is between three and four years. The House is made up of the majority party the political party which secures the highest number of seats at the election, which will form the government.
The head of that party will be invited by the Queen to take office as Prime MinistetIn turn, it is for the Prime Minister to select his or her Cabinet. The opposition parties comprise the remainder of the now 659 Members of Parliament.
The official Opposition is the party that represents the second largest party in terms of elected members. In principle, the role of the official Opposition is to act as a government in waiting, ready at any time to take office should the government seek a dissolution of parliament.
The judiciary is that branch of the state which adjudicates upon conflicts between state institutions, between state and individual, and between individuals. The judiciary is independent of both parliament and the executive. It is the feature of judicial independence which is of prime; importance both in relation to government according to law and in the protection of the liberty of the citizen against the executive. As Blackstone observed in his Commentaries.
… in this distinct and separate existence of the judicial power in a particular body of men, nominated indeed, but not removable at pleasure by the Crown, consists one main preservative of the public liberty which cannot subsist long in any state unless the administration of common justice is in some degree separated both from the legislative and from the executive power.
It is apparent, however, that, whilst a high degree of judicial independence is secured under the constitution, there are several aspects of the judicial function which reveal an overlap between the judiciary, parliament, and the executive.
The Lord Chief Justice, Master of the Rolls, President of the Family Division, Vice Chancellor, Lords of Appeal in Ordinary, and Lord Justices of Appeal are appointed by the Queen. For appointments to the High Court, the candidate must be a barrister of ten years standing, a solicitor with rights of audience in the High Court, or a circuit judge of two years standing. For appointment to the Court of Appeal, the candidate must either be a barrister of ten years standing, a solicitor with rights of audience in the High Court, or a current member of the High Court Bench.
The Lord Chief Justice assumes the Lord Chancellor’s former functions as head of the Judiciary assuming the additional title of President of the Courts of England and Wales and Head of the Judiciary of England and Wales. The Lord Chief Justice of England and Wales, the Lord Chief Justice of Northern Ireland, and the Lord President of the Court of Session in Scotland may make written representations to Parliament on matters relating to the judiciary or the administration of justice. Where the functions of the Lord Chancellor have been modified or transferred to the Lord Chief Justice, those functions will generally be exercised either with the concurrence of or after consultation with the Lord Chancellor.
The socio-economic and educational background of the judiciary has been subjected to much research. In brief, the picture presented is one of a middle and upper-class, middle-aged, White, predominantly male, judiciary dominated by public schools and Oxford or Cambridge University education. The process of selection has traditionally been shrouded in secrecy, with records of eligible candidates, who in practice will be successful practitioners, being maintained by the Lord Chancellor’s Department.
The criteria for selection are ability, experience, standing integrity, and physical health. It had long been argued that the appointment of judges should be made by an independent Judicial Appointments Commission rather than on the recommendation of the Lord Chancellor alone. The Constitutional Reform Act 2005 has finally brought, about reform. The 2005 Act establishes a Judicial Appointments Commission which has responsibility for the recruitment and selection of judges for the courts in England and Wales.
The Act of Settlement 1700 secured a senior’’ judge’s tenure of office during good behavior More modern expression is given to this protection under the Supreme Court Act 1981, which provides that a person appointed shall hold office during good behavior, removable only by He, Majesty on an Address presented to her by both Houses of Parliament. Senior judges cannot be dismissed for political reasons. They can be removed by compulsory retirement if they are incapacitated or unable to resign through incapacity.
Judges can be dismissed for misbehavior, and under an Address to the Crown made by the two Houses of Parliament. ‘Misbehaviour’ relates to the performance of a judge’s official duties or the commission of a criminal offense.
Not every judge convicted of an offense will be dismissed: six judges have been convicted for driving with an excess of alcohol in their blood but have continued in office. In 1830, Sir Jonah Barrington was removed from office in Ireland under the Address procedure for the embezzlement of monies paid into court.
Theoretically, a judge can also be removed by ‘impeachment’ for ‘high crimes and misdemeanors, although this procedure has not been used since 1805 and is thought to be obsolete. In Scotland, judges can only be removed on the grounds of misconduct.
The Constitutional Reform Act 2005 established the Office for Judicial Complaints. The Lord Chief Justice and the Lord Chancellor can refer a matter to the Office for investigation and report. Any decision relating to further action lies with the Lord Chief Justice.
The Judicial Pensions and Retirement Act 1993 introduced the retirement age of 70, which may be extended to 75 if in the public interest. From 1959, the retirement ages were set at 75 for a High Court judge and 72 for a circuit judge, although judges appointed before this date were permitted to remain in office.
In order further to protect the judiciary from political debate, judicial salaries are charged to the Consolidated Fund. Judicial salaries are relatively high, on the basis that it is in the national interest to ensure an adequate supply of candidates of sufficient caliber for appointment to judicial office.
Holders of full-time judicial appointments are barred from legal practice, and may not hold paid appointments as directors or undertake any professional or business work. Judges are also disqualified from membership in the House of Commons. Membership of the House of Commons does not, however, disqualify that person from appointment to the Bench.
Immunity From Suit:-
All judges have immunity from legal action in the performance of their judicial functions. Provided that a judge acts within their jurisdiction, or honestly believes he is acting within his jurisdiction, no action for damages may lie. A judge is immune from the law of defamation and, even if ‘actuated by envy, hatred and malice and all uncharitableness’, he is protected.
In Sirrus v Moore (1975), Lord Denning MR and Ormrod LJ ruled that every judge irrespective of rank including the lay magistracy — is protected from liability in respect of his judicial function provided that he honestly believed that the action taken was within his jurisdiction. The Crown Proceedings Act 1947 also provides protection for the Crown from liability for the conduct of any person discharging ‘responsibilities of a judicial nature vested in him or in executing the judicial process.
Bias or Personal Interest:-
A judge is under a duty not to adjudicate on cases in which he has either an interest — whether personal or financial — or where he may be influenced by bias. A fundamental doctrine of natural Justice is that ‘no man should be a judge in his own cause: Nemo index in sua causa.
In Dr. Bonham’s Case (1609) Lord Coke held that members of a board that determined physicians’ fines could not both impose and receive the fines, thus giving early judicial expression to the requirement of freedom from bias. Rather more recently, in Dimes v Grand Junction Can) Proprietors (1852), the propriety of Lord Cottenham LC adjudicating was challenged on the basis that the Lord Chancellor held shares in the canal company involved in litigation. The House of Lords set aside the decision of the court despite the fact that.
No one can suppose that Lord Cottenham could be in the remotest degree influenced by the interest . . . It is of the last importance that the maxim that no man is to be a judge in his own cause should be held sacred.
Thus, the mere existence of financial interest, even where it does not in fact result in actual bias but may present the appearance of bias, will be sufficient to disqualify a judge from adjudication, The same position prevails in the United States of America, where the issue of financial interests of federal judges is expressly covered by the law. The Ethics in Government Act 1978 requires that Supreme Court and Federal judges make a public declaration of ‘income, gifts, shares, liabilities, and transactions in securities and real estate protection which is conspicuously absent in the United Kingdom.
A financial interest in a case that does not go beyond the financial interest of any other citizen does not disqualify judges from sitting. Thus, in Bromley London Borough Council v Greater London Council (1983), for example, the fact that all the judges in the Court of Appeal were taxpayers and users of public transport in London did not disqualify them from hearing the case.
Judges, like everyone else, may be biased by virtue of race, sex, politics, background, association, and opinions. When adjudicating they must, however, be demonstrably impartial. This impartiality involves:
. .. the judge listening to each side with equal attention, and coming to a decision on the argument, irrespective of his personal view about the litigants . . .
Whatever his personal beliefs, the judge should seek to give effect to the common values of the community, rather than any sectional system of values to which he may adhere.
Where a judge himself feels that he has a bias against one of the parties to litigation he may disqualify himself from sitting on the case, as did Lord Denning MR in Ex parte Church of Scientology of California (1978). There, counsel for the Church requested that he disqualify himself as a result of eight previous cases involving the Church on which he had adjudicated, and in which, in the eyes of the Church, he displayed bias against them.
1989 witnessed the start of a high-profile case in which the doctrine of judicial impartiality was re-stated by the House of Lords. Earlier in the year, the former President of Chile, Senator Pinochet, arrived in Britain on a private visit for medical tests.
The Spanish government sought the arrest and extradition of Pinochet on charges involving the murder, torture, and the hostage-taking of Spanish citizens in Chile between 1973 and 1979. Two provisional warrants for Pinochet’s arrest had been granted following the Spanish proceedings.
Pinochet then sought judicial review of the decision to grant an arrest warrant and an order of certiorari to quash the decision. On appeal to the House of Lords, the court ruled by a majority of three to two judges that former Heads of State enjoyed immunity from arrest and extradition proceedings in the United Kingdom only in respect of official acts performed in the exercise of their functions as a Head of State.
Torture and hostage-taking could not be regarded as part of Pinochet’s official functions and therefore were excluded from immunity. In the course of the hearing before the House of Lords, several organizations including Amnesty International had been granted leave to intervene and submit evidence to the court.
Following the decision, Senator Pinochet’s lawyers complained to the Home Secretary that one of the judges, Lord Hoffmann, was a director of the Amnesty International Charitable Trust and, as a result, was disqualified from sitting, on the basis that his participation raised the question of bias: of a judge ‘sitting on his own cause’. Senator Pinochet accordingly applied for the decision to be set aside. Lord Hoffmann had been one of the three majority judges.
In an unprecedented move, Lord Browne-Wilkinson, convened a differently constituted panel of judges to reconsider the case, reiterating the principle that it was of fundamental importance that justice should not only be done but should manifestly and undoubtedly be seen to be done. The mere fact of his interest ‘was sufficient to disqualify him unless he made sufficient disclosure.
The Pinochet case, spawned further challenges against judges, alleging bias of one form or another. It also led to calls for a register of judges’ interests, in which any interests which might raise the question of bias could be recorded and made public, a proposal rejected by Lord Browne-Wilkinson as unworkable: whereas it was generally clear when Members of Parliament’s interests conflict with their professional duties, as he put it, a judge [ unlike Members of Parliament ] may be dealing with anything, any local club or society . . . there’s no end to it.
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