Strengthening Judicial Independence Whilst Eliminating Judicial Impunity: A Promising Paradox

The Constitutional Reform Act of 2005 rides on the crescent wave of voices and policies in the European community that seek to uphold the primacy of human rights and due process, particularly when made vulnerable by antiquated state structures and legal institutions. The clear trend has been to favor the sanctity of individual liberties over the preservation of traditionalist and vanguardist policies. What is manifest in the Constitutional Reform Act 2005 - and indeed is its overarching theme - is that it is a reflection of the Government's response to the growing sensitivity of the judiciary to the fundamentals of the British Constitution and the need to observe them. This paper will focus on two legal issues at the forefront of the Constitutional Reform Act of 2005 that impact greatly on the human rights project, particularly the right of a party-litigant to an impartial trial. First, how the Act strengthens judicial independence and insulates judicial appointments and decisions from the vagaries of politics; and second, how the Act strives to eliminate judicial impunity. The harmonization of these two policy goals, it is posited, is what makes for a more stable legal order in consonance with the needs and visions of the 21st century.

I. Strengthening Judicial Independence

Under the former arrangement, judges are appointed by the Lord Chancellor, who is a member of the Cabinet and effectively the Minister of Justice. Also, the Lord Chancellor and Lords of Appeal in Ordinary (who constitute the Appellate Committee of the House of Lords - the law lords) sit as well in the House of Lords, which is part of the legislature. According to Lesley Dingle and Bradley Miller in their paper "UK Constitutional Reform", (Dingle and Miller, 2004, Internet), these considerations make it difficult for judges to remain politically-impartial.

Section 3 of the Act states that, "The Lord Chancellor, other Ministers of the Crown and all with responsibility for matters relating to the judiciary or otherwise to the administration of justice must uphold the continued independence of the judiciary." Further, the Act reduces the role of the Lord Chancellor with respect to the judiciary and no longer makes it possible for him to act as both a government minister and a judge. This is by way of complying with the due process and fair trial principles enshrined in the European Convention on Human Rights, and other international conventions. (Wikipedia, 2005, Internet)

It has been said that any new legislation must always be viewed against the backdrop of its contextual realities. Hence, on the issue of judicial independence, illuminating are the questions posed by the Select Committee on the Constitution, 5th Report of Session 2005-2006: "Does it have any application to ministers who publicly ask for judges to be tough on suspected terrorists, or who threaten the courts with the prospect of amending legislation if they do not give effect to current government policy?"

,.l.promotion of the principle of procedural fairness and judicial impartiality. At best it is a landmark policy shift that will yield clear benefits to those who come to the courts of law to seek redress. At its minimum, it sets the tone for a State agenda that is willing to dismantle existing infrastructure, if need be, to recognize the primacy of civil liberties and human rights.

II. Whittling down Judicial Impunity

The Constitutional Reform Act of 2005 prescribes lengthy and detailed guidelines for the judicial discipline. Under Section 62, an Ombudsman will be appointed by the Queen upon recommendation by the Lord Chancellor. Section 108, on the other hand, lays down the rules for disciplining an errant