What is judicial independence?
Most constitutional theories require that the judiciary is separate from and independent of the government. This is said to ensure the rule of law – that is, to ensure that the law is enforced impartially and consistently no matter who is in power, and without undue influence from any other source.
The doctrine of the “separation of powers” has traditionally proposed that the state is divided into the separate and distinct arms of the Executive, the Legislature and the Judiciary, whereby each arm acts as a “check and balance” on the others.
However, until recently this doctrine was not observed in the UK, with the Executive (the Government) drawn exclusively from members of the Legislature (Parliament), while in the office of the Lord Chancellor the three arms were fused. The Lord Chancellor was a Cabinet Minister, a member of the House of Lords and head of the Judiciary.
In July 2003, the Government announced plans to abolish the post of Lord Chancellor (making the Lord Chief Justice head of the judiciary, as “President of the Courts of England and Wales”); abolish the system of Law Lords sitting in the House of Lords and replace it with a separate Supreme Court; and to establish a new Judicial Appointments Commission.
These plans provoked considerable controversy and eventually the then Prime Minister, Tony Blair, decided to modify rather than abolish the ancient role of Lord Chancellor. The reform of the Lord Chancellor’s role has separated its different responsibilities and made a clear distinction between government, Parliament and the judiciary.
The Supreme Court in the UK contains 12 independent judges.
Brexit and the judiciary
Most recently, the result of the 2016 EU referendum has had a huge impact on the UK’s judiciary, both in terms of its profile and constitutional role.
In 2017, the Supreme Court ruled that Theresa May’s government had to seek the right to trigger Article 50 by an Act of Parliament. The ruling proved immensely controversial and was chastised by Leave-backing politicians and media outlets.
The Daily Mail labelled the Supreme Court judges ‘Enemies of the People’ for their decision. The headline was widely criticised as a political attack on an independent institution.
In September 2019, PM Boris Johnson controversially opted to prorogue parliament to prevent – according to his critics – MPs holding a no confidence vote in him and legislating against a no-deal Brexit . The prorogation was subsequently ruled unlawful by the Supreme Court.
Hurt by these rulings, the 2019 Conservative manifesto talked of ensuring that ‘judicial review is available to protect the rights of the individuals against an overbearing state, while ensuring that it is not abused to conduct politics by another means or to create needless delays’.
On a constitutional level, Boris Johnson’s withdrawal agreement expanded the powers to courts below the Supreme Court to depart from previous rulings of the EU’s top court. The UK ceased to be bound by EU law on 31 December 2020, the end of the Brexit transition period.
Previous rulings of the European Court of Justice (ECJ) are set to be incorporated into the case law followed by British courts after Brexit. UK courts, including the Supreme Court, may follow the ECJ’s decisions if relevant, but they are not obliged to do so.
Judicial independence – Wider controversies
Judicial Activism
The past 25 years have seen critics allege growing judicial activism. The Human Rights Act 1998 has had a profound impact in this sense.
Notably, in the case of R (on the application of Q and others) v Secretary of State for the Home Department [2003] 2 All ER 905, Justice Collins, sitting in the high court, criticised the provisions of the Nationality, Immigration and Asylum Act 2002, stating that the removal of benefits from asylum seekers who did not apply on arrival in the country was unfair and breached their human rights.
This and similar cases, alongside an increasing willingness on the part of judges to speak out on political issues (notably that of the former Lord Chief Justice, Lord Woolf), have led Ministers to accuse judges of attempting to usurp the democratic process.
Nevertheless, this trend predates the Human Rights Act: under the last Conservative government Home Secretary Michael Howard was publicly criticised by the Lord Chief Justice Lord Taylor on minimum sentencing, and by Lord Donaldson on the 1997 Police Bill.
Opponents of the 2017 and 2019 Supreme Court rulings on Brexit accused the court of judicial activism inspired by anti-Brexit bias.
If it ain’t broke, don’t fix it…
Prior to 2005, constitutional reformers held the UK’s “fusion of powers” to be unsatisfactory and the position of the Lord Chancellor anomalous in a modern democracy. However, as with most of the UK’s constitutional anomalies, the longstanding apparent evidence that the status quo “worked”, meant that reform struggled to appeal to the wider public.
Furthermore, the speed with which Blair’s government brought out the 2005 proposals led many to suggest that the plans were not well thought through: some claimed that the proposals were brought forward purely as a political manoeuvre to unseat the incumbent Lord Chancellor, Lord Irvine, who was opposed to any reform.
In July 2004, the House of Lords overturned provisions in the Constitutional Affairs Bill to abolish the historic post of Lord Chancellor. However, the House ultimately accepted those elements of the Bill relating to the appointments commission and the end of the Lord Chancellor’s active judicial role.
Diversity
Proposals to broaden the diversity of the judiciary by selecting more women and ethnic minority candidates have raised concerns about jeopardising the independence of the appointments system. The Crime and Courts Bill included in the Queen’s Speech in May 2012 includes provisions to increase judicial diversity.
However, the Judicial Appointments Commission has insisted that candidates for judicial office are “selected on merit, through fair and open competition, from the widest range of eligible candidates,” although it also notes that it has a responsibility to “have regard to the need to encourage diversity in the range of persons available for selection for appointments.”
Upon his appointment in 2020, Lord Reed said the lack of diversity among the 12 Supreme Court justices was a situation ‘which cannot be allowed to become shameful if it persists’.
In total, Only 4% of senior judges appointed to the High Court or above are from ethnic minority backgrounds. Reed succeeded Lady Hale as president of the Supreme Court who was the first female to hold the role.
In 2016, the Supreme Court launched a four-year strategy, setting out the actions that the institution could take to promote equality and diversity. Although the Supreme Court is deliberately apolitical, a lack of representativeness is presented as undermining trust in the institution.
2005 reforms
The Constitutional Reform Act 2005, which came into force in April 2006, considerably modified the role of the Lord Chancellor and in so doing, strengthened the independence of the Judiciary. For the first time in almost 900 years, judicial independence was officially enshrined in law.
The 2005 Act was divided into three parts. It drastically changed the office of ‘Lord Chancellor’, created and set the framework for a UK Supreme Court and regulated the appointment of Judges to this court.
In April 2006, a new Judicial Appointments Commission began to operate. This ended the Lord Chancellor’s position as head of the judiciary (courts of law in England and Wales) and power to appoint judges.
In July of 2006 year, members of the House of Lords elected their first Lord Speaker. This new role assumed some of the Lord Chancellor’s former responsibilities, such as chairing debates in the Lords’ chamber and speaking for the House on ceremonial occasions.
The Ministry of Justice was created in May 2007; it has responsibility for courts, prisons, probation and constitutional affairs. Under the 2005 Act, the Secretary of State for Justice also officially holds the office of Lord Chancellor, albeit with the greatly reduced role, largely ceremonial role.
In line with the 2005 Constitutional Reform Act, the judicial function of Parliament ended in 2009 and an independent UK Supreme Court was established. The court assumed the jurisdiction of the Appellate Committee of the House of Lords and the devolution jurisdiction of the Judicial Committee of the Privy Council. Eleven of the twelve new Justices of the UK Supreme Court were recruited from the previous top judges (the “Law Lords”).
The UK Supreme Court is an independent institution, presided over by twelve independently appointed judges, known as Justices of the Supreme Court. The Court has its own building, the Middlesex Guildhall, on the other side of Parliament Square, separate – both symbolically and geographically – from Parliament.
Quotes
“It is vitally important in a democracy that individual judges and the judiciary as a whole are impartial and independent of all external pressures and of each other so that those who appear before them and the wider public can have confidence that their cases will be decided fairly and in accordance with the law. When carrying out their judicial function they must be free of any improper influence. Such influence could come from any number of sources. It could arise from improper pressure by the executive or the legislature, by individual litigants, particular pressure groups, the media, self-interest or other judges, in particular more senior judges.” — Judiciary of England and Wales, 2012
“By a majority of eight to three, the Supreme Court today rules that the government cannot trigger Article 50 without an act of Parliament authorising it to do so”. — Supreme Court President Lord Neuberger, 2017
“This Court has already concluded that the Prime Minister’s [Boris Johnson’s] advice to Her Majesty was unlawful, void and of no effect. This means that the Order in Council to which it led was also unlawful, void and of no effect and should be quashed. This means that when the Royal Commissioners walked into the House of Lords it was as if they walked in with a blank sheet of paper. The prorogation was also void and of no effect. Parliament has not been prorogued. This is the unanimous judgment of all 11 Justices”. — Supreme Court President Lady Hale, 2019
