Some other important safeguards, the products of legislation and convention, are outlined below.
(a) Tenure. The Act of Settlement 1700 originally provided for judicial security of tenure. This is now re-enacted in the Senior Courts Act 1981, s 11 (formerly the Supreme Court Act 1981) for judges in the Crown Court, High Court and Court of Appeal, and in the Constitutional Reform Act 2005, s 33 for a judge of the (new) Supreme Court. Both of these Acts state that judges hold office ‘during good behaviour’ and may only be dismissed by the monarch following an address presented by both Houses of Parliament.
(b) Immunity. An independent judiciary means that there is a requirement that judges cannot be sued for their actions in court, even if they act mistakenly, providing that they act within their jurisdiction. This privilege extends to the law of defamation. Judges are required to reach their decisions freely and independently. Complete immunity is given to judges in the higher courts, although in the lower courts the position is not quite so clear. For instance, in Sirros v Moore [1975] QB 118 it was held that, even if a judge acts maliciously, so long as he reasonably believes that he is acting within his jurisdiction, he cannot be sued for his actions in court.
(c) Open courts. Trials should be conducted in public, as it is important that justice is seen to be done. Cases should only be heard 'in camera' if a hearing in an open court would defeat the ends of justice or if it is necessary to protect the vulnerable. Article 6 of the European Convention on Human Rights also plays an important role in this regard. Note, however, the more recent introduction of the 'closed material procedure' in relation to some cases involving national security. (See section 5.3.1).
(d) Political independence. Full-time judges are disqualified from sitting in the House of Commons and, by convention, must be apolitical. Members of the Cabinet should not criticise judges, although this is a convention that is not always observed. Courts also lack jurisdiction to inquire into proceedings in Parliament. This is a very long-established and important principle of ‘parliamentary privilege’ is enshrined in Article 9 of the Bill of Rights 1689.
(e) Judicial appointments. The appointments of judges up to and including the High Court used to be made by the Lord Chancellor, a member of the executive and the legislature (and formerly also one of the Law Lords). This system was criticised by many as directly contradictory to the doctrine of separation of powers. The Constitutional Reform Act 2005, s 6 provided for the setting-up of an independent Judicial Appointments Commission, intended to improve the quality of the administration of justice and enhance public confidence in the judiciary. The work of the Commission ensures greater conformity with the doctrine of separation of powers. Independence of the Commission is ensured by 15 commissioners comprising a mix of professional, lay and judicial members. According to the Constitutional Reform Act 2005, s 63, judicial appointments will solely be based on merit and good character.
(f) Head of the Judiciary. As a result of the Constitutional Reform Act 2005, s 7, the Head of the Judiciary is no longer the Lord Chancellor, but instead the Lord Chief Justice. This removes the office from direct political control