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powers of a state Governor

National and international developments[edit]

The development of judicial independence has been argued to involve a cycle of national law having an impact on international law, and international law subsequently impacting national law.[9] This is said to occur in three phases: the first phase is characterized by the domestic development of the concept of judicial independence, the second by the spread of these concepts internationally and their implementation in international law, and the third by the implementation in national law of these newly formulated international principles of judicial independence.[9]

A notable example illustrating this cycle is the United Kingdom. The first phase occurred in England with the original conception of judicial independence in the Act of Settlement 1701.[10] The second phase was evident when England’s concepts regarding judicial independence spread internationally, and were adopted into the domestic law of other countries; for instance, England served as the model for Montesquieu’s separation of powers doctrine,[11] and the Founding Fathers of the US Constitution used England as their dominant model in formulating the Constitution’s Article III, which is the foundation of American judicial independence.[12] Other common law countries, including Canada, Australia, and India, also adopted the British model of judicial independence.[13]

In recent decades the third phase of judicial independence has been evident in the UK,[14] as it has been significantly influenced by judicial independence principles developed by international human rights constitutional documents. The European Court of Human Rights (ECtHR) has had a significant impact on the conceptual analysis of judicial independence in England and Scotland. This process began in the 1990s with the ECtHR hearing UK cases and, more significantly, in the application of the European Convention on Human Rights in British law through the Human Rights Act 1998, which came into force in the UK in 2000.[15]

Where British national law had previously impacted the international development of judicial independence, the British Constitutional Reform Act 2005[16] marked a shift, with international law now impacting British domestic law. The Constitutional Reform Act dramatically reformed government control over the administration of justice in England and Wales; importantly, it discontinued the position of the Lord Chancellor, one of the country’s oldest constitutional offices, who was entrusted with a combination of legislative, executive, and judicial capacities.[17] The Lord Chancellor served as speaker of the Upper House of Parliament, the House of Lords; as a member of the executive branch and member of the senior cabinet; and as the head of the judiciary. Historically, the appellate function had a connection with the executive branch due to the types of cases typically heard – impeachment and the hearing of felony charges against peers.[18] The Constitutional Reform Act established new lines of demarcation between the Lord Chancellor and the judiciary, transferring all the judicial functions to the judiciary and entrusting the Lord Chancellor only with what are considered administrative and executive matters. In addition, the Constitutional Reform Act replaced the Lord Chancellor by the Lord Chief Justice as head of the judiciary, separated the judicial Appellate Committee of the House of Lords from the legislative parliament, reforming it as the Supreme Court, and creating a Judicial Appointments Commission.[19] The creation of the Supreme Court was important, for it finally separated the highest court of appeal from the House of Lords.[20]