SELF-ASSESSMENT QUESTIONS
All the answers can be found in the recommended materials,
the reading list or the above summaries.
1.What is meant by the independence of the judiciary? Is
this independence important?
2.How does independence differ from impartiality?
3.Is it important for the judiciary to be representative of
society? Is so, why? Does this also apply to magistrates?
How could the judiciary and/or the magistracy be made
more representative of society in general?
4.What criticisms have been made of the selection and
appointment of the judiciary? Read the rest of this entry »
TRAINING OF THE
JUDICIARY
This has come on by leaps and bounds in recent years. Th
former view that judges knew how to judge automatically,
through having been previously advocates, has now been
overtaken by a significant expansion of the Judicial Studies
Board (the “JSB”).
In 1998-9 significant training was provided for the judiciary
full and part time, on the Woolf reforms and the CPR prior t
their implementation in April 1999. In 1999-2000 the Read the rest of this entry »
WOMEN IN THE JUDICIARY
The lack of suitable women appointees nonetheless remains a
problem, however. There is still no female Law Lord, only
three women in the Court of Appeal, and one female Head of
Division. There are however a number of women on the
Circuit Bench, and many women sitting on tribunals. Women
are also fairly well represented in the lay magistracy.
Consider this issue for discussion: Read the rest of this entry »
NEW INITIATIVES
The present Lord Chancellor has, however, taken initiatives to
improve chances of selection from these non-traditional
sources, including encouraging work shadowing in a pilot
scheme amongst District Judges, road shows in which his
Department takes a group of officials from the judicial selection
units around the country to explain the new and improving Read the rest of this entry »
THE NEED FOR DISCLOSURE
The counsel of perfection for judges and decision makers
including arbitrators is therefore to be alert to any potential
conflict and to disclose it before a hearing commences so that
if it is necessary to step down this may be done immediately.
If the issue arises during a hearing, as it sometimes does, then
disclosure should be made at once, although the Court of
Appeal commented that it is generally undesirable to abort a Read the rest of this entry »
IMPARTIALITY IN ARBITRATION – A
CHALLENGE
The AT & T case was about whether one of three arbitrators
should or should not have sat on the case at all: the arbitrator
in question was a non-executive director of a competitor of
AT & T called Nortel of Canada, which had lost a contract
with the other party in the case, Saudi Cable Co. which had
been won by AT & T. The arbitrator’s connection was not
discovered until after the three arbitrators had made partial
awards to Saudi Cable Co. However the Commercial Court
refused to set aside the awards on the basis that his
connection was irrelevant since it was not a connection with a
party to the case. Thus there was no automatic
disqualification, as in Lord Hoffmann’s case, The Court of
Appeal upheld the Commercial Court and observed in passing
that the same tests apply to judges and arbitrators.
Nevertheless, despite the difficulty of finding experts in a small
specialised field where everyone has probably at some stage
had dealings with everyone else, the High Court will order the
removal of an arbitrator who has a relevant connection with a
case, e.g. recently they removed a rent review arbitrator
because his firm was currently acting for a company
associated with one of the parties. This suggests that
arbitrators and parties may need to review their conflict
search procedures as appointing bodies such as the Royal
Institution of Chartered Surveyors (RICS) who often choose
the arbitrator in such cases, cannot realistically be relied upon
to identify the existence or lack of conflict.
CONFLICTS OF INTEREST
The Court of Appeal has recently considered a clutch of cases
concerning judges’ potential conflicts of interest: see
LOCOBAIL (UK) LTD v BAYFIELD PROPERTIES LTD [2000] 1 All ER
65, [2000] 2 WLR which concerned five cases with the common
problem of bias, dealt with by the strong court of Lord
Bingham of Cornhill, CJ, Lord Woolf, MR and Sir Richard Scott,
VC, as they then were. They looked at the twin problems of
actual and apparent bias, and held that:
P actual bias is rare but where a decision maker had a direct
personal interest in the outcome of proceedings, which was
other than de minimis, bias was presumed and that person
must be automatically disqualified from hearing or continuing
to hear a case and any judgment given must be set aside (the
Lord Hoffmann situation).
Apparent bias arises when, looking at the matter through the
eyes of a reasonable man there was a “real danger of
unconscious bias” on the part of the decision maker. The
court declined to give factors which could give rise to such
bias saying that that would be dangerous and futile as it
depended on the fact in every case, including the nature of
the issue to be decided.
THE LORD CHANCELLOR’S ROLE
This is not true of the Lord Chancellor who holds an
incongruous clutch of offices: as Lord Chancellor he is a
political appointee, a minister in the government of Cabinet
rank and usually is a member of the Cabinet. Part of the work
of his department is to control the appointment of judges of all
ranks, and of lay magistrates. He sits on the Woolsack in the
House, introduces important government legislation and also
takes part as a judge in the hearing of appeals. A similar Read the rest of this entry »
THE ESSENTIAL QUALITIES
OF A JUDGE
Judges are required to be both independent and impartial. It
has been said that there is sometimes a conflict between
independence and impartiality on the one hand and the
contemporary post-Woolf drive for efficiency.
JUDICIAL INDEPENDENCE
Nothing is more is crucial to the English legal system than he
independence of the judiciary. This principle is reinforced by
protection from removal and the doctrine of judicial immunity
which protects judges from civil suit in respect of their
activities during the course of judicial office. Read the rest of this entry »
JUDGES’ TENURE
Nevertheless, only High Court judges and above have
security of tenure under the Act of Settlement 1701, whereby
they hold office quamdiu se bene gesserint, i.e. “during good
behaviour” and can only be removed by address of both
Houses of Parliament. Read the rest of this entry »
1.THE JUDICIARY
A BROAD OR A NARROWER
DEFINITION?
The judiciary in the widest sense of the term, encompasses all
those holding judicial office of any sort, whether full time, or
part time and at every level. In this sense it includes the
Tribunals and the professional and lay magistracy. Read the rest of this entry »
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