Who are the judges, how are they appointed, and why must they be independent of government?
The judiciary: the types and hierarchy of judges, their appointment and qualifications, judicial independence and the doctrine of the separation of powers, and the role of judges in the courts.
An Eduqas A-Level Law guide to the judiciary. Explains the types and hierarchy of judges, appointment and the Judicial Appointments Commission, judicial independence, the separation of powers and the role of judges, with worked exam answers and the evaluation the paper rewards.
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What this dot point is asking
Eduqas Component 1 requires you to know the judiciary: the types and hierarchy of judges, how they are appointed and qualified, the doctrines of judicial independence and the separation of powers, and the role judges play in the courts. The skill is to explain appointment and independence precisely (AO1) and to evaluate how well the system protects independence and the separation of powers (AO3).
The answer
Types and hierarchy of judges
Appointment and qualifications
Since the Constitutional Reform Act 2005, most judges are appointed on the recommendation of the Judicial Appointments Commission (JAC), an independent body that selects solely on merit through open competition and recommends a single name to the Lord Chancellor, who may only reject or ask for reconsideration in limited circumstances. This replaced the old system of secret soundings, which was criticised for favouring a narrow group. Candidates need the relevant judicial-eligibility condition (a qualifying period holding a legal qualification under the Tribunals, Courts and Enforcement Act 2007). Supreme Court Justices are chosen by a special ad hoc selection commission.
Judicial independence
The separation of powers
The separation of powers (Montesquieu) holds that the legislature (Parliament), the executive (government) and the judiciary (courts) should be separate so that no branch becomes too powerful and liberty is protected. The UK does not have a strict separation (the executive sits in the legislature; Parliament is sovereign), but the Constitutional Reform Act 2005 strengthened it by creating an independent Supreme Court (replacing the Law Lords in the House of Lords), reforming the role of the Lord Chancellor, and making the Lord Chief Justice the head of the judiciary.
The role of judges
In the courts, judges manage the trial, rule on points of law, direct the jury on the law (in the Crown Court), decide cases (alone in civil trials), pass sentence (in criminal cases) and develop the common law through the doctrine of judicial precedent.
Examples in context
A strong answer uses the protections as evidence and reaches a reasoned judgement, not a list.
Try this
Q1. Explain how the independence of the judiciary is protected. [10 marks]
- What the marker wants. Precise AO1: security of tenure (removal only by address of both Houses), salaries from the Consolidated Fund, immunity from suit, the sub judice rule, and the Constitutional Reform Act 2005 (the JAC and the Supreme Court).
Q2. Analyse and evaluate the way judges are appointed in England and Wales. [15 marks]
- Cue. An AO3 essay: explain the JAC, merit and open competition (Constitutional Reform Act 2005); evaluate the improvement on secret soundings against continuing concerns about diversity and the executive's residual role, and conclude.
Exam-style practice questions
Practice questions written in the style of WJEC Eduqas exam questions on this dot point, with worked answer explainers. The year tag is the paper they imitate, not the source.
Eduqas Component 1 2022 (evaluation)15 marksAnalyse and evaluate the importance of judicial independence and the separation of powers. [an analysis/evaluation question in the style of Component 1, AO3]Show worked answer →
A mainly AO3 essay. Explain the two doctrines, then evaluate how well the system protects them.
Explanation. The separation of powers (Montesquieu) divides state power between the legislature (Parliament), the executive (government) and the judiciary (courts) so that no one branch is too powerful. Judicial independence means judges decide cases free from pressure from the other two branches.
Protections. Security of tenure (senior judges removable only by an address of both Houses); salaries paid from the Consolidated Fund (not subject to annual political vote); immunity from suit for judicial acts; the sub judice rule limiting comment on live cases; and the Constitutional Reform Act 2005, which created the independent Judicial Appointments Commission and the Supreme Court and made the Lord Chief Justice (not the Lord Chancellor) head of the judiciary.
Evaluation. Strengths: these protections let judges rule against the government in judicial review (for example Miller). Weaknesses: the UK has no strict separation (ministers sit in the legislature; Parliament is sovereign); judges are still appointed by a process involving the executive; and judicial diversity remains poor, which may affect confidence.
A top answer explains both doctrines, evaluates the protections, and reaches a reasoned judgement.
Eduqas Component 1 2021 (explain style)10 marksExplain how judges are appointed in England and Wales. [an explain question in the style of Component 1, AO1]Show worked answer →
A mainly AO1 explain question. Set out the role of the Judicial Appointments Commission and the qualifications required.
Since the Constitutional Reform Act 2005, most judicial appointments are made on the recommendation of the independent Judicial Appointments Commission (JAC), which selects solely on merit through open competition, reducing executive patronage. Candidates must hold the relevant judicial-eligibility qualification (a period holding a legal qualification under the Tribunals, Courts and Enforcement Act 2007), and lower posts are often a route to higher ones. Supreme Court Justices are selected by a special ad hoc selection commission.
A top answer explains the JAC, the merit principle and open competition, and the qualification requirement, noting the move away from the old secret soundings system.
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Sources & how we know this
- Eduqas A Level Law (A150) specification — WJEC Eduqas (2017)