10.1.2 The Judiciary Lecture
This hierarchy of courts is important in ensuring the administration of justice functions effectively within the court system and in particular in relation to public law.
B. The Structure of the Judicial System
UK Supreme Court
Court of Appeal
Court of Appeal
Court of Appeal
First Tier Tribunal
Figure 10.1 The Judicial System in England and Wales
C. The Role of the Judiciary
The role of the court system is to decide cases, including a determination of the relevant facts, then the determination of the relevant law and the application of the relevant facts to the relevant law.
The courts’ role in the UK Constitution
Courts act as the adjudicators in cases that involve public law. They are frequently asked to determine a case where a public body has infringed the rights of a private individual and are required to rule on the legality of a decision made by a public body.
Public bodies also possess a protection function.
Functions other than Dispute Resolution
Under the doctrine of precedent, higher courts including the Court of Appeal and UK Supreme Court can make decisions that clarify specific points of law and bind the lower courts in a prospective fashion.
Can Judges Make the Law? The Separation of Powers Doctrine
Parliament is not the only body that makes laws, since administrative bodies pass a wide range of secondary legislation. The courts do; however, also contribute to the law-making enterprise but, the courts’ law-making powers are usually quite limited.
As unelected judges the courts are not subject to the democratic selection by the public, and hence the separation of powers doctrine requires that there are significant limits on the courts' law-making powers.
D. Judicial Appointments
i. The Judiciary
The Executive is responsible for the judicial appointments in the UK. The Queen, with the advice of the Prime Minister (PM), makes appointments in the UK Supreme Court. The Lord Chief Justice, the Master of the Rolls and the President of the Family Division are appointed, along with other senior roles, on the advice of the PM and the Lord Chancellor. The Queen, on the advice of the Lord Chancellor, appoints High Court judges; this is the same for circuit judges and recorders.
ii. Judicial Appointments Commission
The widespread criticism of the lack of transparency in the judicial appointments process was the impetus for the passage of the Constitutional Reform Act 2005. The Judicial Appointments Commission (JAC) was established by an Order in Council in April 2006 to review judicial appointments. Its formation includes a lay chairperson as well as a number of other Commissioners.
E. Judicial Independence
The right to have legal proceedings that are unbiased is a fundamental human right and is incorporated within Article 6 ECHR. Certain steps have been taken in recent years to ensure that there is a sufficient separation between the judiciary as an institution and the other branches of government.
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