Judicial Independence and Neutrality

Question 1

what principles does the justice system rest on?

Answer 1

The justice system rests on 2 key principles; judicial independence and neutrality

Question 2

what is meant by judicial independence and neutrality? what are judges meant to be?

Answer 2

judges are meant to be strictly impartial and non-political, this is one of the basic differences between liberal democracies and authoritarian regimes

in authoritarian regimes, the courts become instruments of the state

in liberal democracies, the law is interpreted by judges who are independent and neutral

Question 3

how can judges be political or biased?

Answer 3

judges can be political or biased in two ways…

• external bias = influenced by other political bodies like the executive or Parliament
• internal bias = influenced by their own prejudices and sympathies

these biases are meant to be kept at bay through judicial independence and neutrality

Question 4

JUDICIAL INDEPENDENCE: what is judicial independence?

Answer 4

judicial independence = the principles and actions of judges should not be influenced by pressure from other branches of government, particularly the executive

judges must be free from political interference

this is vital as they may be called on to administer justice in cases where there is a conflict between the state and an individual citizen

Question 5

JUDICIAL INDEPENDENCE: what is judicial independence a key part of?

Answer 5

judicial independence is a key part of the constitution and vital to the rule of law

Question 6

JUDICIAL INDEPENDENCE: what must the people and judges be sure of?

Answer 6

people must know that they will receive impartial justice

judges need to be confident that they can make a decision without fear of damaging their career prospects

Question 7

JUDICIAL INDEPENDENCE: what is judicial independence based on?

Answer 7

judicial independence is based on the separation of powers

essentially, there should be a strict separation between the judiciary, the executive and Parliament

Question 8

JUDICIAL INDEPENDENCE: what does judicial independence allow judges to do?

Answer 8

judicial independence allows judges to apply the law using their own experience and legal training rather than as other bodies of the government would wish

if the executive and Parliament can influence judges and how they apply the law, the law cannot act as a restraint on the government — therefore, judicial independence is vital to the rule of law

Question 9

JUDICIAL INDEPENDENCE: in what ways is independence maintained?

Answer 9

ways independence is maintained…

• appointment process
• security of tenure
• pay
• freedom from criticism
• independent legal profession
• role of the Lord Chancellor
• creation of the Supreme Court
• greater institutional autonomy

Question 10

JUDICIAL INDEPENDENCE: how does the appointment process maintain judicial independence?

Answer 10

The appointment process involves little political interference, otherwise judges would be appointed on the basis of their sympathies or leanings towards the government

they used to be appointed by the Prime Minister and Lord Chancellor but the JAC (Judicial Appointments Commission) was established under the 2005 CRA which has introduced greater independence to the appointment process

The JAC and Selection Commission are transparent in their appointment procedure and free from political intervention

Question 11

JUDICIAL INDEPENDENCE: how does security of tenure maintain judicial independence?

Answer 11

security of tenure means that once appointed, judges cannot be fired

they remain in office until they retire at 70 — The official retirement age is the only limit on their service

this ensures independence because if judges could be removed or demoted then this could be used to influence their decision making

senior judges can only be removed by a
petition from both Houses (this has not happened since 1830), while junior judges can only be removed by the Lord Chancellor due to ‘bad behaviour’ such as being found guilty of a criminal offence

judges cannot be removed from office unless they break the law

judges are also immune from legal action arising from any comments made on cases in court

Question 12

JUDICIAL INDEPENDENCE: how does pay maintain judicial independence?

Answer 12

judges salaries are safeguarded from political influence

they are paid out of the Consolidated Fund which is not subject to annual review by the House of Commons

their salaries are decided by an independent pay review body and judges are paid automatically from an independent budget without the possibility of manipulation by ministers

however, this did not prevent a freeze on judicial salaries and changes to judicial pensions under the 2010-15 government

Question 13

JUDICIAL INDEPENDENCE: how does freedom from criticism maintain judicial independence?

Answer 13

The judiciary is free from criticism

constitutional conventions forbid MPs and peers from putting pressure on judges by criticising their court rulings and decisions in parliament

The ‘subjudice’ rule forbids people (including politicians) from commenting on cases currently being considered

Question 14

JUDICIAL INDEPENDENCE: how does the independent legal profession maintain judicial independence?

Answer 14

The legal profession is independent

judges are appointed from lawyers who belong to an autonomous legal profession

The Law Society and Bar Standards Board regulate the legal profession, not the government, which also means lawyers and judges are not trained by the state and are therefore more independent

Question 15

JUDICIAL INDEPENDENCE: how does the reformed role of Lord Chancellor maintain judicial independence?

Answer 15

The many roles of the Lord Chancellor used to be a major threat to judicial independence because he was both the head of the judiciary and a member of Cabinet

since 2006, the role has been transferred to the Lord Chief Justice and the Lord Chancellor’s influence over judicial appointments has been reduced

under the CRA 2005, the Lord Chancellor has to swear an oath to defend judicial independence

Question 16

JUDICIAL INDEPENDENCE: how does the creation of the Supreme Court maintain judicial independence?

Answer 16

The CRA 2005 established the Supreme Court to replace the House of Lords as highest court of appeal in the UK

The Supreme Court strengthens judicial independence as it breaks the link between the courts and Parliament, the law lords no longer sit in the House of Lords

The Supreme Court is also physically separate from Parliament, which is a visible sign of its independence

this has removed any possible doubt of it being interfered with by Parliament

Question 17

JUDICIAL INDEPENDENCE: how does greater institutional autonomy maintain judicial independence?

Answer 17

there is now greater institutional autonomy than ever before

The judiciary has become a more independent and self governing branch of government

The Lord Chief Justice is head of the judiciary and makes the decisions previously made by the Lord Chancellor

now all appointments of circuit and district judges are done by the Lord Chief Justice

Question 18

JUDICIAL INDEPENDENCE: the growing willingness of ministers to publicly criticise the courts

Answer 18

The growing willingness of ministers to publicly criticise the court is a concern about judicial independence, particularly in the case of Home Secretaries…

• 2003 — David Blunkett condemned the release of the 9 Afghan hijackers
• 2005 — Charles Clarke criticised the release of terror suspects from Belmarsh prison
• 2010 — Theresa May criticised the refusal to deport 2 terror suspects to Pakistan

Question 19

JUDICIAL INDEPENDENCE: what have ministers become increasingly willing to do?

Answer 19

ministers have become increasingly willing to make public statements of criticism or expressed disappointment at the decisions of judges

although there is little evidence that judges have been affected by such public criticisms

Question 20

JUDICIAL INDEPENDENCE: what does greater judicial activism suggest?

Answer 20

evidence of greater judicial activism (the willingness of judges to arbitrate on political matters) in recent years suggests a determination of judges to develop their own view on the ‘proper’ application of the law

for example, Lord Neuberger attacked Theresa May when she was Home Secretary in 2013 for criticising judges over their failure to deport foreign criminals

common public clashes between ministers and judges demonstrate the health of judicial independence

Question 21

JUDICIAL NEUTRALITY: what is judicial neutrality?

Answer 21

judicial neutrality = the absence of any form of political leaning or sympathies

judges should not be influenced by their personal political opinions and should remain outside of party politics

Question 22

JUDICIAL NEUTRALITY: what would be lacking neutrality?

Answer 22

judges may be political through their own biases or prejudice, this would be lacking neutrality

Question 23

JUDICIAL NEUTRALITY: what makes it difficult to be completely neutral and objective? but what are judges expected to be?

Answer 23

everyone has their own views and opinions which makes it hard to be completely neutral and objective

judges are meant to be impartial in the sense that they were able to ensure that their own views do not affect their professional behaviour

judges must exercise functions without personal bias

Question 24

JUDICIAL NEUTRALITY: in what ways is judicial neutrality maintained?

Answer 24

The code of conduct of the Supreme Court lays down numerous ways in which neutrality must be upheld

ways that neutrality is maintained…

• political restrictions
• legal training
• accountability
• not public figures
• conflicts of interest

Question 25

JUDICIAL NEUTRALITY: how do political restrictions maintain judicial neutrality?

Answer 25

judges are under political restrictions

this means that judges are not meant to engage in open political activity

magistrates may be members of political parties but this is not acceptable for judges

judges are also expected to not express open support for pressure groups or protest movements

Question 26

JUDICIAL NEUTRALITY: how does legal training maintain judicial neutrality?

Answer 26

legal training is an extensive process — senior judges will have worked as barristers or junior judges for between 20 and 30 years

this enables judges to focus entirely on legal considerations due to their experience

they are trained to be impartial and objective

Question 27

JUDICIAL NEUTRALITY: how does accountability maintain judicial neutrality?

Answer 27

The judiciary is accountable in that senior judges must explain their rulings and highlight key reasons behind their decisions

appeals allow cases to be re-heard in higher courts which means judges can be held to account if it is clear that their personal beliefs have affected their decision

Question 28

JUDICIAL NEUTRALITY: how does not being public figures maintain neutrality?

Answer 28

judges are required to not be public figures

they are discouraged from speaking out on political matters and become involved in public controversy

the Kilmuir rules forbid judges from participating in public debates about policy matters in order to preserve their neutrality

they are allowed to write and give lectures due to their function of educating the public and can involve themselves in charitable and voluntary activities

they may also serve on a government commission as long as it does not compromise the neutrality

but they must avoid political activity

Question 29

JUDICIAL NEUTRALITY: how does avoiding conflicts of interest maintain judicial neutrality?

Answer 29

conflicts of interest must be avoided

judges must refuse to sit in a case that involves a family member, friend or professional associate

otherwise the justice’s neutrality and impartiality can be questioned

Question 30

JUDICIAL NEUTRALITY: what did Griffiths suggest about the judiciary? how is this a concern for judicial neutrality?

Answer 30

Griffiths (2010) argued that there is a Conservative, right wing bias in the senior judiciary, stemming from the fact that judges are predominantly male, white, upper-middle class and Oxbridge educated

some suggest this might make them biased against women, ethnic minorities, etc as these people are poorly represented in the judiciary, possible inability to truly empathise with them and understand their issues

in 2016, 11 of the supreme court justices were white men and the other was a white woman, 71% of senior judges attended private schools and 75% were Oxbridge educated

this reinforces a long-standing anxiety about the judiciary being disproportionately white, male and privately educated

The narrowness of the Supreme Court composition in terms of gender, race and class is a real concern for neutrality

Question 31

JUDICIAL NEUTRALITY: what are some concerns about judicial neutrality?

Answer 31

• growing trend for senior judges to take a public stand on policy issues
• Kilmuir rules relaxed in the 1980s — judges can now engage in public debates in the belief that their experience and expertise would assist the policy process

Question 32

JUDICIAL NEUTRALITY: in what ways is the Supreme Court more transparent?

Answer 32

The Supreme Court is much more transparent in explaining its rulings than its predecessors (the law lords in the House of Lords)

its website has full details of its decisions and the reasoning behind them, which allows for greater transparency and public scrutiny

it also shows that justices have remained neutral in their reasoning

The Supreme Court also allows visitors and its proceedings are televised

Question 33

JUDICIAL NEUTRALITY: examples of judges launching outspoken attacks on government policy

Answer 33

in recent years, judges have launched outspoken attacks on government policy which seems to undermine judicial neutrality

although public clashes have become less common since 2008

Lord Bingham called for the rule of law to include protection for fundamental human rights and require that states comply with their obligations under international law

Lord Woolf spoke out against some provisions of the CRA 2005 and severely criticised the government’s handling of the constitutional reform process

Lord Phillips criticised the wider use of mandatory sentences and strongly condemned proposals for the creation of a Ministry of Justice

these examples demonstrate the robust independence of the judiciary but also highlight how judges have become more public figures willing to get involved in politics and challenge the government, they are arguably less neutral

Question 34

JUDICIAL NEUTRALITY: lack of diversity in the Supreme Court

Answer 34

the existence of only one female member was significant in the case of Radmacher v Granatino (2010) which involved a prenuptial agreement between marriage partners

A majority of Supreme Court justices upheld the principle that claims made in the event of a divorce should be limited

Lady Hale was the only one of the 9 justices to dissent from the majority verdict, she argued that the vast majority of people who would lose out as a result of this precedent would be women

in 2015, Lady Hale called for an effort to promote greater diversity of background in appointment to the Supreme Court, pointing out that of 13 justices sworn in since her appointment, all were men, all were white, all but 2 were educated at independent schools and all but 2 attended Oxbridge

now there are three women in the Supreme Court but there are still no ethnic minorities