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October 23, 2014

Are judges more or less independent than in 2000?

What has happened to judicial independence and accountability in the last twenty years?  There have been significant changes, like the radical change to the position of Lord Chancellor.  The Constitution Unit at University College London, has done a major and thoughtful review of this. They are clear that judicial independence has in fact improved, partly because the Lord Chief Justice and the judiciary have greater powers, for instance over courts and over judicial appointments.  In the past, the Lord Chancellor tapped future judges on the shoulder and was the final arbiter of all appointments.  Now the judicial appointments commission makes nearly all appointments. And Judges are heavily involved in those appointments: “The Lord Chief Justice is consulted at the start of each competition. Judges prepare case studies and qualifying tests. Judges write references. A judge sits on the panels that interview candidates; and judges are consulted in statutory consultation. On the JAC, 7 of the 15 commissioners are judges”.

This UCL study (which is coming out as a book in February) is about the paid judiciary.  I think the conclusions don’t translate through to magistrates, who have lost independence as a result of these constitutional changes.  They lost a lot of power when Magistrates’ Courts Committees were abolished in the Courts Act 2003.  They went from running the administration of local courts, to having some of the seats on courts boards, which had no real power.  Then in 2012, Courts Boards were abolished, leaving magistrates with no real say over courts’ administration.    While, arguably, the paid Judiciary have gained more control over courts through having three places on Her Majesty’s Courts and Tribunals Service Board.  Magistrates have also lost control over training, since Magistrates’ Courts Committees held the budget for local training.  Recruitment is less clear cut.  Magistrates still have a prominent place on Advisory Committees, but magistrate recruitment policy has moved from the Executive (the Lord Chancellor’s Department) to the Judiciary, and is managed by the Judicial Office.  I think Advisory Committees have less freedom than ten years ago to do things their way.  A member member of an Advisory Committee said that in the old days, they could and did recruit to fill perceived gaps in their representation ie to recruit more ethnic minority people if they felt the bench was not diverse enough.  That practice was stopped by the centre who said it did not meet equal opportunities principles.