Judicial Independence and Neutrality Flashcards
what is the rule of law
It is the principle that nobody is above the law and everybody is equal before the law
Why does the rule of law require an independent judiciary?
If the government has too much control over the judiciary, it cannot effectively check whether the government itself stays within the law.
arguments in favour of the view that the UK SC is independent
- The Supreme Court regularly rules against the government. This suggests that they are not controlled by the government or parliament but independent.
- The supreme court is no longer part of the legislature but seperate from it. It has therefore become more independent from parliament and government control, this has undermined parliamentary sovereignty
- Judges cannot be fired and are appointed until they choose to retired - therefore they cannot be threatened with removal from office or removed
example - SC rule against government
The Supreme Court ruled against the
government in Miller v. Secretary of State for Exiting the European Union 2017 on whether it is government or parliament that formally decides to start the exit from the EU
example - SC seperate from parliament
Constitutional Reform Act
example - retirement
Baroness Hale was president of the SC in 2017 until her retirement in 2020
arguments against judicial independence
- The government maintains influence on
judges through them appointment process.
The Lord Chancellor can reject selections from
the independent commission they can be removed from office if they break the law. - They can be removed from office if they break the law. The Lord Chancellor can remove
ordinary judges in that case. To remove a Supreme Court judge there has to be a vote from Parliament! - The government increasingly put pressure on judges, by commenting on judgements in the media.
examples - removed by lord chancellor
4 junior judges were dismissed for misconduct (watching pornographic material on office
computers) in 2015
example - comment in the media
Several Conservative MPs, such as Jacob Rees-Mogg, criticised the 2017 Supreme Court decision on article 50, Miller v. Secretary of
State for Exiting the EU
example - put pressure through appointment process
In 2011 Lord Chancellor Ken Clarke vetoed the appointment of a High Court judge, because the candidate had not declared he was
director of an investment fund - though this is little control compared to the US
arguments in favour of the view that the SC is neutral
- Supreme Court judges are not allowed to be actively involved in a political party or attend political gatherings
arguments that they are not neutral
- Most judges are still recruited from a small pool of private school educated, white, middle aged men. Their views reflect their background. If their life-experience is so different from most people in the UK, how can they be truly neutral?
examples - political affiliations
The Guide to Judicial Conduck bans judges from attending political gatherings and membership of political parties
example - background
Of the 12 supreme court judges - 10 are male, 10 attended a private school, all are over 60, all are white
argument againt background
It is the views on the law, not the background that counts. Justices sometimes rule in favour of minority groups and members of the british public that are different from them because they are well qualified and apply the law as they see fit - examples would be cases brought to the supreme court by pressure groups
