BAC Guest Lecture March 2025

Judiciary
Dr Ben Hudson
Senior Lecturer in Law
[email protected]
Lecture outline
• Introducing the judiciary
• Judicial appointments
• Judicial diversity and addressing the “diversity
deficit”
• Judicial independence
• Recent tensions and worrying signs
• Concluding remarks and thanks
Courts & Tribunals System
Who are the judges?
Judicial roles include (this list is not
exhaustive):

• Supreme Court Justices (12)

• Heads of Division (5)
• High Court judges (108)
• Circuit judges (665)
• Magistrates (22,160)
• Tribunal judges (including some
non-legal members) (c. 500)
What do judges do?
1. Settle disputes (between individuals; between the
individual and the State)
2. Interpret legislation
3. Develop the common law (applying the doctrine
of precedent)
‘They [judges] do not merely discover legal principles
concealed in the luxuriant undergrowth of ancient principle
and scattered legal decisions… They make law within
broad limits determined by statute and legal policy’ (Lord
Sumption, 2013).
Judicial appointments
Constitutional Reform Act (CRA) 2005 (as amended by the
Crime and Courts Act 2013):

s 61(1): ‘There is to be a body corporate called the Judicial

Appointments Commission’.
Judicial appointments
CRA 2005, s 63(2-3) (as amended): ‘Selection must be solely on
merit’, plus, ‘A person must not be selected unless the selecting
body is satisfied that he is of good character.’
CRA 2005, s 33: ‘A judge of the Supreme Court holds that office
during good behaviour, but may be removed from it on the address
of both Houses of Parliament’.

1. Intellectual capacity • Criminal offences

2. Personal qualities • Financial matters (e.g.
3. Ability to understand and deal fairly insolvency and debt, tax matters)
4. Authority and communication skills • Professional conduct (e.g.
5. Efficiency professional negligence)
6. Leadership and management skills
Who are the judges?
Female BAME Non-barrister

Court judges 28% 7% 34%

Tribunal judges 45% 10% 66%

As of 1 April 2017. Source: Judicial Diversity Statistics 2017.

Female BAME Non-barrister

Court judges 32% 8% 32%

Tribunal judges 47% 12% 63%

As of 1 April 2020. Source: Judicial Diversity Statistics 2020.

‘Diversity deficit’
‘Judicial Diversity: Accelerating Change’ (JAC 2014, 5):
• ‘The near absence of women and Black, Asian and minority
ethnic [BAME] judges in the senior judiciary, is no longer
tolerable. It undermines the democratic legitimacy of our legal
system; it demonstrates a denial of fair and equal opportunities to
members of underrepresented groups, and the diversity deficit
weakens the quality of justice.’
Source: Judicial Diversity Statistics 2017
Source: Judicial Diversity Statistics 2017
‘Diversity deficit’
Disability:
• Think accessibility
• Tackling stereotypes
Socio-economic background:
• ‘The biggest diversity deficit and the most difficult inclusivity problem
for the legal profession, as for the judiciary, relates to those with a less
privileged economic, social and educational background… The problem
is considerable, as, by the time that people from underprivileged
backgrounds are thinking of applying to law firms or sets of chambers, it
is very often too late: the opportunities that their more fortunate peers
have been afforded over time places them at a considerable
disadvantage’ (Lord Neuberger, Rainbow Lecture, para 23).
Why does diversity matter?
‘I take the view that ‘difference’ is important in judging and that
gender diversity, along with many other dimensions of diversity,
is a good, indeed a necessary, thing. However, the principal
reason for this is not our different voice, but democratic
legitimacy. In a democracy governed by the people and not by an
absolute monarch or even an aristocratic ruling class, the
judiciary should reflect the whole community, not just a small
section of it. The public should be able to feel that the courts are
their courts; that their cases are being decided and the law is
being made by people like them, and not by some alien beings
from another planet.’

Lady Hale (2014 Fiona Woolf Lecture, p 4)

Why does diversity matter?
1. ‘It is simply unjust and incompatible with elementary justice that
people should have fewer opportunities in life because they are
women, because they are not white, or because they come from a
background which is socially or economically under-privileged. Liberal
democracy does not mean the tyranny of the majority: it includes
protection of the minorities and of the underprivileged.’
2. ‘[I]f the most important jobs are, in practice, open to only a small
proportion of the population, it is statistically inevitable that many of
those top jobs do not go to the best people, which must be to the
country’s economic, cultural and social disadvantage.’
3. ‘If everyone has a stake in society, we flourish. By contrast, the more
we concentrate power and influence in the hands of a few, the greater
the risk of alienation of the many.’

Lord Neuberger (2014 Rainbow Lecture, paras 6, 8 and 31)

How to increase diversity?
• ‘[T]here is no single or straightforward solution to the issue,
and as well as any legislative change there will need to be
strong and clear leadership at all levels, both within the
judiciary and the legal professions’ (MoJ 2012).
• Establishment of the JAC, although further amendments to
selection processes cannot be ruled out (interview with Lord
Neuberger).
How to increase diversity?
• Part-time working for judges in higher courts, e.g. see insertion of
‘full-time equivalent number of judges’ into CRA 2005, s 23(2).
• Encouragement of diversity by LC & LCJ in CRA 2005, s 137A.
• ‘Equal Merit Provision’ in CRA 2005, s 63(4):
• ‘Neither “solely” in subsection (2), nor Part 5 of the Equality Act 2010
(public appointments etc), prevents the selecting body, where two
persons are of equal merit, from preferring one of them over the other
for the purpose of increasing diversity…’ (see also s 27(6)).
• A wider understanding of what we mean by ‘merit’?
• Fundamental (radical?) reform of judicial education and training.
• You can read whether the reforms are having any positive impact
by following JAC’s Statistics Bulletins (see jac.judiciary.gov.uk).
Break
Take a 10-minute comfort break
Judicial independence
• One of the three “Is”: independence, impartiality, integrity.
These are key values that are central to the role of
judicial office holders.
• Bangalore Principles of Judicial Conduct: independence,
impartiality, integrity, propriety, ensuring equality of
treatment, and competence and diligence.
• ‘The judiciary should be fair and transparent, free of any
influence outside the rule of law’ (Courts and Tribunals
Judiciary 2023).
Judicial independence
• ‘Judicial independence is a prerequisite to the rule of law
and a fundamental guarantee of a fair trial. A judge shall
therefore uphold and exemplify judicial independence in
both its individual and institutional aspects’ (Courts and
Tribunals Judiciary 2023).
• Fairness
• Trust
• Judges must be free of any improper influence and must
also be perceived as such.
ECHR Article 6(1)
‘In the determination of his civil rights and obligations or of
any criminal charge against him, everyone is entitled to a
fair and public hearing within a reasonable time by an
independent and impartial tribunal established by law.
Judgment shall be pronounced publicly but the press and
public may be excluded from all or part of the trial in the
interests of morals, public order or national security in a
democratic society, where the interests of juveniles or the
protection of the private life of the parties so require, or to
the extent strictly necessary in the opinion of the court in
special circumstances where publicity would prejudice the
interests of justice.’
Judicial independence
• What constitutes improper influence? Independence
from whom?
• Government (the executive branch)
• Individual litigants
• Commercial interests
• Media
• Own self-interest
Legislature Executive Judiciary
makes the law implements the law interprets the law

UK Houses of PM Kier Starmer UK Supreme Court

Parliament
(Commons & Lords)
ECtHR case law
Ringeisen v Austria (App no 2614/65) 16 July 1971:

‘The Court has not found any facts to prove that Ringeisen
was not given a "fair hearing" of his case. Besides, the
Court observes that the Regional Commission is a
"tribunal" within the meaning of Article 6, paragraph (1) (art.
6-1), of the Convention as it is independent of the executive
and also of the parties, its members are appointed for a
term of five years and the proceedings before it afford the
necessary guarantees’ (para 95).
ECtHR case law
Luka v Romania (App no 34197/02) 21 July 2009:
To establish whether a tribunal can be considered
‘independent’, regard must be had to:
• The manner of appointment of its members.
• Their term of office.
• The existence of guarantees against outside pressures.
• The question as to whether the body presents an
appearance of independence.

Removable from Could discharge other functions /

office activities assigned to them by the orgs.
on whose behalf they had been elected.
ECtHR case law
• Varied judicial appointments possible (Kleyn v the
Netherlands (2003)).
• Appointment of judges by the executive or legislature is
permissible (Campbell and Fell v UK (1984)). What
matters is the relationship when in their judicial role.

Clarke v UK (App no 23695/02) 25 August 2005

• Applicant alleged lack of independence of judges in
judicial review proceedings, in violation of Article 6(1).
• Government contested this Inadmissible under Article
6(1) – ‘circuit and district judges are sufficiently
independent and impartial’ (para 1).
Judicial appointments
Constitutional Reform Act (CRA) 2005 (as amended by the
Crime and Courts Act 2013):

s 61(1): ‘There is to be a body corporate called the Judicial

Appointments Commission’.
ECtHR case law
Clarke v UK (App no 23695/02) 25 August 2005

• Must be independent of executive and the parties.

• Recruitment process involved:
• A period of time sitting as a judge.
• A competitive interview.
• The panel included a serving judge.
• Consultations among judges and members of the legal
profession.
• A full-time position that continued until retirement.
ECtHR case law
Clarke v UK (App no 23695/02) 25 August 2005

• ‘[T]here is no hierarchical or organisational connection

between the judges and the Lord Chancellor’s Department.
Further, there is no suggestion that pressure is actually put on
district or circuit judges to decide cases one way rather than
another’ (para 1).
• It is true that circuit and district judges could be removed by
the Lord Chancellor. This would be subject to JR.
• ‘The evidence is that no district judge has been removed by
the Lord Chancellor in living memory, and only one circuit
judge has been removed (after conviction for offences of
dishonesty) since the office was created over 30 years ago’
(para 1).
Pinochet Ugarte (No 2)
R v Bow Street Metropolitan Stipendiary Magistrate, ex p
Pinochet Ugarte (No 2) [2000] 1 AC 119

• Former Head of State of Chile. Allegations of various crimes

against humanity.
• Spain sought his extradition from the UK.
• Claimed immunity for acts done while former Head of State.
• Prior judgment (No 1) set aside.
• Director of a charity affiliated to Amnesty International –
Amnesty International Charity Ltd.
• Alleged that his links with Amnesty International ‘were such as
to give the appearance of possible bias’ – a question of
apparent bias.
Pinochet Ugarte (No 2)
R v Bow Street Metropolitan Stipendiary Magistrate, ex p
Pinochet Ugarte (No 2) [2000] 1 AC 119

• ‘The fundamental principle is that a man may not be a judge in

his own cause … if a judge is in fact a party to the litigation or
has a financial or proprietary interest in its outcome then he is
indeed sitting as a judge in his own cause.’
• ‘In such a case, once it is shown that the judge is himself a
party to the cause, or has a relevant interest in its subject
matter, he is disqualified without any investigation into
whether there was a likelihood or suspicion of bias. The mere
fact of his interest is sufficient to disqualify him unless he has
made sufficient disclosure.’
Tensions
Tensions
Constitutional Reform Act 2005, ss 1, 3 and 17:
Tensions
"The independence of the
judiciary is the foundation
upon which our rule of law
is built and our judiciary is
rightly respected the world
over for its independence
and impartiality.

"In relation to the case

heard in the High Court,
the Government has made
it clear it will appeal to the
Supreme Court. Legal
process must be followed."
Tensions
“I will always speak out and say how
important having an independent
judiciary is... Where perhaps I might
respectfully disagree with some who
have asked me to condemn what the
press are writing, is that I think it is
dangerous for a government Minister
to say this is an acceptable headline
and this is not. I am a huge believer
in the independence of the judiciary;
I am also a very strong believer in a
free press and the value it has in our
society. In defending the judiciary, it
is very important that I speak out
about the valuable work it does… but
I draw the line in saying what is
acceptable for the press to print or
not. For me, that goes too far.”
Worrying signs
Concluding remarks
• Most judicial appointments are now managed by the JAC. A rather
complex process, but responds to concerns about safeguards that
did not previously exist. Many of these safeguards seek to ensure
actual and perceived judicial independence.
• The E&W and UK courts are characterised by a judicial diversity
deficit. This is primarily exhibited in the senior ranks.
• Steps are being taken to address this, but their long-term
impacts/success are yet fully known.
• Judicial independence is vital, yet it cannot be taken for granted. It
must constantly be reaffirmed, with the government (esp. LC)
having a constitutional duty to uphold it (although it seemingly
cannot be assumed they will). We must remain vigilant.
• Thank you! :)
• [email protected]
• https://experts.exeter.ac.uk/34490-ben-hudson