Separation of power and independence of judiciary

• Proposed by?


  Montesquieu (French political philosopher)
• What is it?


  The three arms of the state should be entirely separate so nobody has too much power and influence. All independent to each other
• Three arms of state?

  • The legislature - the law making arm (PARLIAMENT)
  • The executive - the administrative body who oversees the law in practice (GOVERNMENT)
  • The judiciary - the body that apply the law (JUDGES)
• How was the Lord Chancellor prior to 2005 in contradiction to the separation of powers?

  He had power in all three arms- he was appointed by the PM for his role and was a member of the Cabinet. But he was speaker in the HoL in law making discussions and he was a member of the Privy council which also involved him in legislature. He had roles in the judiciary too. So he applied the law and had roles in the judiciary, helped with law making and oversaw it too.
• Aims of CRA 2005?

  1. Modifying the office of LC (LC no longer head of judiciary and appointing judges except SC judges)
  2. creating a SC
  3. to make provisions about the judiciary, their appointment and discipline (no longer in HoL= separate)
• Why’s it important for judges to remain independent?


  Impartiality, avoids bias, gov cannot appoint certain people to push an agenda (political no more)
• What does the independence of each body ensure?

  A properly democratic system can exist and each body can provide the appropriate checks and balances on the others so that no single body has too much power and corruption can be avoided.
• CRA 2005 key reforms?

  The Judicial Appointments Commission was created which became responsible for all judicial appointments. A selection panel will consider all appointments for judicial office and this will go to the Secretary of State for Justice for acceptance or rejection. The Ministry for justice was created 2007 headed by the then Secretary of State for Justice.
• The Judicial Appointments Commission?

  Made up of 15 members including a Chair who is a layperson, and 6 working judges among others. Appoint all judges up to the HC level. Superior judges are still appointed by the LC, with the involvement of JAC, who sit in CoA and SC.
• What can the LC do once a selection has been made?

  According to the CRA the commission must submit a report to teh LC which states the selection, who was consulted, and other relevant information. If he’s content he forwards it to the PM who sends it to the King who makes the formal appointment
• So how are judges independent now?

  Judges cannot be members of the HoC or sit in HoL. Superior judges cannot be dismissed by gov so they can be truly independent from the executive, and they’re therefore free from political pressure and can make decisions which may be disapproved by gov without fear of reprisals
• What powers did the LC have BEFORE the CRA 2005?

  • Judiciary: appoints and dismisses judges, head of the Chancery Division of High Court, a judge in HoL
  • Legislature: Speaker of the HoL when law making takes place, member of Privy Council
  • Gov: a member of the Cabinet, appointed by PM
• What powers did the LC have AFTER the CRA 2005?

  • He NO LONGER: appoints and dismisses judges, head of the Chancery Division of High Court, a judge in HoL or a speaker of the HoL when law making takes place
  • He now has limited power in the judiciary except for appointing CoA and SC judges but he still has power as a member of the Privy Council (legislature) and he's still a member of the Cabinet and appointed by the PM (gov)