â€œRecent judicial reforms will ensure judicial independence from interference by the State, but greater transparency of judicial appointments may also decrease the publicâ€™s reverence for judicial office.â€ 1. Introduction The drive for constitutional reform is on the basis of the foundational concept of the separation of powers. Integral to this is that the judiciary should be free to uphold the rule of law and prevent elective dictatorship. Although well-intentioned, elements of the change appear haphazard and as we shall see have not fully resolved the problem of independence. A corollary of the drive has been a review of judicial appointments to ensure independence and open the process to public scrutiny. Although welcome, there are still inherent difficulties in making appointments purely autonomous and these problems may cause a decline in the reputation of judges. 2. The background to judicial reform In 2003 the Government created a Department for Constitutional Affairs to oversee the process of rapid reform that had already comprised devolution, the removal of hereditary peers from Parliament, and the Human Rights Act 1998. The Constitutional Reform Act 2005 was the legacy of the short-lived department that then became the Ministry of Justice in 2007. The Act aimed to institute the separation of powers and particularly ensure judicial independence and the rule of law. This was partly to meet the requirements of the European Convention on Human Rights Article 6, which specifies the right to a fair trial. But the legislation also aimed to meet public expectations and prevent governmental interference in potentially controversial cases. Over the past almost two decades judges have increasingly had to rule on politically contentious matters, resulting in unprecedented conflict between the executive and the judiciary. Decisions on charged policy areas such as immigration and security may have political effects which governments past have occasionally attempted to influence. This has been exacerbated by the ability of the courts to review legislation in the light of the Human Rights Act 1998. A particularly public conflict over judicial review of criminal sentencing has been on-going since Michael Howard’s tenure as Home Secretary (1993-97). In a parliamentary debate of 17th February 1999, the Lord Chancellor referred to the essential counter-balance of his role and back to that period of “unprecedented antagonism between the judiciary and the Government over the judicial review of ministerial decisions.” The conflict continued when the judiciary would not permit the government to set minimum terms for life sentences in conflict with Article 6 of the European Convention on Human Rights which has it that sentencing must be by independent trial (1). (An Incredible irony given that Home Office lawyers drafted Article 6). Obiter it was stated: “The protection of the judiciary from Executive interference is, in my view, a high order duty – perhaps the highest order duty – of any Lord Chancellor. The office is a buffer between the judiciary and the executive which protects judicial independence.” In 2003 following the formation of the Department of Constitutional Affairs the Lord Chancellor was assigned to a new role distinct from the judiciary.
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