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Under the UK constitutional law, the principle of judicial independence derives from the theory of separation of powers, whereby the Executive, Legislature, and Judiciary form the three separate branches of the government. The Judiciary plays an important role in adjudicating disputes according to the existence law; the judges are the main element to interpret and uphold the law. Thus, the impartiality of the judges is crucial in practising the theory of separation of powers. Based on the rule of law itself, it is important in protecting human rights and the fundamental freedoms of the individuals.[1] Furthermore, the impartiality of the judiciary is a fundamental right in the context of effectiveness of a justice system. However, to what extent are judges personally and substantively independent in a diverse state like the UK? This essay will discuss the factors that might influence the impartiality of judges in making decisions. The factors will be discussed include the personal elements, political influence, judicial diversity and the impact of Judicial Appointments Commission (JAC) and Constitutional Reform Act 2005.
Generally, the fundamental right of the impartiality of the judiciary enshrined in the Article 10 of Universal Declaration of Human Rights and was confirmed in the Article 14 of the International Covenant on Civil and Political Rights (ICCPR). Furthermore, the Human Rights Act 1998 (HRA) re-emphasized the importance of the independence and impartiality of the judiciary following the requirement of Article 6 of European Convention on Human Rights (ECHR), right to a fair hearing.
Personal elements are recognized to be one of the contributing factors in judicial law-making.[2] Debates among the academicians have identified several components including demographics, judicial activism, morality, personal values and political ideology of judges individually.[3] Lord Radcliffe[4] argues that the judges work in a mechanical system. In interpreting the law, it is neither to be on their command of reasoning nor their knowledge. It does matter on what personal quality do the judges bring to their responsibility, but in the end, his structure of thought and belief, and his experience of life are yet to have built upon their judgement. Proven by Lord Dyson, he acknowledges that the “approach of life” and “philosophy” may play a significant role in his decision making[5]. Lady Hale in giving evidence before the constitutional committee in 2011 noted that “everybody comes to the task with a set of values and perspectives that may lead you to pick different bits of the materials to reason towards an outcome.”[6] Consequently, judges need to uphold the core principle of the judicial independence res
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