An answer should deal with the concept of the rule of law and some of the
essential features of it; and the concept of judicial independence, distinguishing
between institutional independence and individual independence. You could refer
to a number of judicial review and human rights cases to illustrate the importance
of judicial independence in practice.
1. What is the rule of law?
The rule of law is a critical constitutional concept which is used to describe the
factors necessary for a well-functioning or healthy state and, in particular, to
constrain the exercise of arbitrary power (Bingham’s eight principles/WJP).
2. Judicial independence and the rule of law
An essential element in the rule of law, which is implicit in Lord Bingham’s eight
principles but not spelled out explicitly, is the centrality of the concept of judicial
independence to the rule of law (see The Bangalore Principles of Judicial Conduct).
3. What do we mean by judicial independence?
Institutional independence - essential for the rule of law - refers to the
the constitutional separation of powers between the three arms of the state: legislature, executive, and judiciary. The executive is responsible for governing the
country and the judiciary is responsible for ensuring that the executive governs
according to the law (cite e.g. judicial review cases) and judiciary and legislature (role
in statutory interpretation).
Personal independence is essential for fairness.
4. What measures are in place to protect that independence?
Statutory protection for institutional independence - Act of Settlement 1701; s.3(1)
Constitutional Reform Act 2005.
Other measures protecting judicial independence
Security of tenure - outline measures and give examples.
Immunity from suit - outline measures.
Salary protection - but see changes to judicial pensions and changes to salary in
Ireland.
Issues for conclusion
The constitutional independence of the judiciary from the executive and legislature is regarded by many societies around the world as an essential element in the operation of the rule of law. Evidence of recent high profile cases (examples); and judicial speeches (examples);Talk about Issues of DOI and it being the last resort. Similarly, on actions for judicial review
the judiciary in recent years have been prepared to rule that the executive has acted beyond its powers, even when those decisions have been unwelcome to the government and unpopular with large sections of the public (examples).
8 сен 2024