Judges

Introduction

Judges are at the heart of the English legal system. They decide cases, interpret legislation, develop the common law, and protect individual rights. Understanding how judges are appointed, the different types of judges, the principles of judicial independence and separation of powers, and the debate about judicial creativity is essential for AQA A-Level Law. This lesson also examines concerns about the diversity of the judiciary.

Types of Judges

The English judiciary is structured hierarchically, with different levels of judges sitting in different courts.

Judge	Court	How Addressed
Justices of the Supreme Court	Supreme Court	"My Lord" / "My Lady" (or by name)
Lords/Lady Justices of Appeal	Court of Appeal	"My Lord" / "My Lady"
High Court Judges (Puisne Judges)	High Court	"My Lord" / "My Lady"
Circuit Judges	Crown Court, County Court	"Your Honour"
Recorders	Crown Court, County Court (part-time)	"Your Honour"
District Judges	County Court, Magistrates' Court	"Sir" / "Madam" or "Judge"
Tribunal Judges	First-tier and Upper Tribunals	"Judge"

Senior Judicial Roles

Title	Role
Lord Chief Justice	Head of the Judiciary of England and Wales; President of the Courts; head of the Criminal Division of the Court of Appeal
Master of the Rolls	Head of the Civil Division of the Court of Appeal
President of the Supreme Court	Head of the Supreme Court
President of the King's Bench Division	Head of the QBD
Chancellor of the High Court	Head of the Chancery Division
President of the Family Division	Head of the Family Division

Appointment of Judges

Before the Constitutional Reform Act 2005

Prior to 2005, the appointment of judges was largely in the hands of the Lord Chancellor, who was a political figure — a member of the Cabinet, a government minister, and the Speaker of the House of Lords. The Lord Chancellor effectively chose judges through a process known as "secret soundings" — informal consultations with existing judges and senior lawyers.

This system was criticised for:

• Lack of transparency — appointments were made behind closed doors.
• Risk of political influence — the Lord Chancellor was a politician.
• Lack of diversity — the system tended to reproduce a judiciary that was overwhelmingly white, male, and from privileged backgrounds.
• Separation of powers concerns — the Lord Chancellor simultaneously held executive, legislative, and judicial roles.

The Constitutional Reform Act 2005

The Constitutional Reform Act 2005 introduced fundamental reforms to the judicial appointment process, driven by concerns about the separation of powers and the independence of the judiciary.

Key changes:

1. Judicial Appointments Commission (JAC) — An independent body established to select candidates for judicial office. The JAC selects candidates on merit through a transparent, open, and fair process. The JAC is responsible for selecting judges from District Judge level up to High Court Judge level.

2. Reform of the Lord Chancellor's role — The Lord Chancellor lost the right to sit as a judge. The role was redefined as a government minister (Secretary of State for Justice). The Lord Chancellor retains a duty to uphold judicial independence.

3. Creation of the Supreme Court — The Appellate Committee of the House of Lords was replaced by the Supreme Court of the United Kingdom, which began sitting in October 2009. This physically and constitutionally separated the highest court from Parliament.

4. Lord Chief Justice — Became the Head of the Judiciary of England and Wales (a role previously held by the Lord Chancellor).

The JAC Selection Process

The JAC selects candidates for judicial appointments based on:

• Merit — the primary criterion. Candidates must demonstrate the relevant skills, knowledge, and personal qualities.
• Good character — candidates must be of good character and have no history of professional misconduct.
• Statutory duty to encourage diversity — the JAC has a duty under the Crime and Courts Act 2013 (s.13) to encourage diversity in the judiciary. Where two candidates are of equal merit, the JAC may prefer the candidate whose appointment would increase judicial diversity (the "tipping provision" or "equal merit provision").

The process:

1. Vacancy advertised openly.
2. Applications received and assessed.
3. Shortlisting based on application and qualifying test.
4. Selection day — interviews, role plays, and presentations.
5. Recommendation to the Lord Chancellor.
6. The Lord Chancellor can accept the recommendation, reject it (with reasons), or ask the JAC to reconsider. The Lord Chancellor can only reject or ask for reconsideration once — ultimately, the JAC's recommendation prevails.

Appointment of Supreme Court Justices

Supreme Court Justices are appointed through a separate process. A selection commission is convened for each vacancy, comprising:

• The President of the Supreme Court.
• The Deputy President.
• A member of the JAC.
• A member of the Judicial Appointments Board for Scotland.
• A member of the Northern Ireland Judicial Appointments Commission.

The commission recommends a candidate to the Lord Chancellor, who has similar powers to accept, reject, or request reconsideration.

graph TD
    A["Judicial Appointment Process"] --> B["JAC: District to High Court"]
    A --> C["Selection Commission: Supreme Court"]
    B --> D["Vacancy advertised"]
    D --> E["Applications assessed on merit"]
    E --> F["Shortlisting and selection day"]
    F --> G["Recommendation to Lord Chancellor"]
    G --> H{"Lord Chancellor's Decision"}
    H -->|Accept| I["Appointment confirmed"]
    H -->|Reject / Reconsider| J["JAC reconsiders once"]
    J --> I
    style A fill:#8e44ad,color:#fff
    style I fill:#27ae60,color:#fff

Judicial Independence

Judicial independence means that judges must be free from improper influence — from the government, from political parties, from the media, and from any other external pressure. Independence is essential to ensure that judges decide cases impartially, based only on the law and the evidence.

Why Judicial Independence Matters

• Ensures fair trials — parties can trust that the judge is impartial.
• Protects individual rights against the state — judges must be able to rule against the government without fear of retaliation.
• Upholds the rule of law — no one is above the law, and the government must act within its legal powers.
• Maintains public confidence in the justice system.

Mechanisms Protecting Judicial Independence

1. Security of Tenure

• Senior judges (High Court and above) hold office during good behaviour and can only be removed by an address of both Houses of Parliament — a process that has never been used for an English judge. This is rooted in the Act of Settlement 1701 (and now the Senior Courts Act 1981, s.11(3)).
• Circuit judges can be removed by the Lord Chancellor for incapacity or misbehaviour (Courts Act 1971, s.17(4)).
• This security of tenure means judges cannot be dismissed for making decisions that the government disagrees with.

2. Immunity from Suit

• Judges cannot be sued for actions taken in the course of their judicial duties. This protects them from intimidation by litigants. The principle was confirmed in Sirros v Moore [1975] and the Courts and Legal Services Act 1990.

3. Guaranteed Salary

• Judicial salaries are paid from the Consolidated Fund and are not subject to annual parliamentary vote. This prevents the government from using financial pressure to influence judges.

4. Sub Judice Rule