Judicial Independence and Neutrality

Question 1

arguments to suggest that the judiciary is neither independent nor neutral

Answer 1

judicial independence is under threat, the judiciary is not entirely independent

judicial neutrality is under threat, the judiciary is not entirely neutral

Question 2

arguments to suggest that the judiciary is independent and neutral

Answer 2

judicial independence is upheld in numerous ways (appointment process, security of tenure, etc)

judicial neutrality is upheld in numerous ways (political restrictions, legal training, etc)

Question 3

judicial independence is upheld in numerous ways (appointment process, security of tenure, etc): THE APPOINTMENT PROCESS

Answer 3

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 4

judicial independence is upheld in numerous ways (appointment process, security of tenure, etc): SECURITY OF TENURE

Answer 4

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

Question 5

judicial independence is upheld in numerous ways (appointment process, security of tenure, etc): REFORMED ROLE OF THE LORD CHANCELLOR

Answer 5

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 6

judicial independence is upheld in numerous ways (appointment process, security of tenure, etc): CREATION OF THE SUPREME COURT

Answer 6

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 7

judicial independence is upheld in numerous ways (appointment process, security of tenure, etc): CREATION OF THE SUPREME COURT

Answer 7

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 8

judicial independence is under threat, the judiciary is not entirely independent

Answer 8

judicial independence is weakened because….

• judges involvement with legislation
• judges salaries
• criticism from government

Question 9

judicial independence is under threat, the judiciary is not entirely independent: JUDGES’ INVOLVEMENT IN LEGISLATION

Answer 9

some political commentators argue that while independent, senior judges still work with parliament to advise on the legality of legislation, meaning that judges have played a role in the creation of legislation and are less likely to approach issues of human rights with true independence or absolutely neutrality precisely for this reason

Question 10

judicial independence is under threat, the judiciary is not entirely independent: JUDGES’ SALARIES

Answer 10

judges’ salaries are meant to be safeguarded from political influence in order to maintain judicial independence

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 11

judicial independence is under threat, the judiciary is not entirely independent: CRITICISM FROM GOVERNMENT

Answer 11

the judiciary is meany to be 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, but the growing willingness of ministers to publicly criticise the court is a concern about judicial independence

• 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

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

Question 12

judicial neutrality is upheld in numerous ways (political restrictions, legal training, etc)

Answer 12

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, judges are meant to be strictly impartial and non-political

ways that neutrality is maintained…

• political restrictions
• legal training
• reasoning and transparency
• Kilmuir rules

Question 13

judicial neutrality is upheld in numerous ways (political restrictions, legal training, etc): POLITICAL RESTRICTIONS

Answer 13

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 14

judicial neutrality is upheld in numerous ways (political restrictions, legal training, etc): LEGAL TRAINING

Answer 14

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 15

judicial neutrality is upheld in numerous ways (political restrictions, legal training, etc): REASONING AND TRANSPARENCY

Answer 15

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

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 16

judicial neutrality is upheld in numerous ways (political restrictions, legal training, etc): KILMUIR RULES

Answer 16

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 their neutrality

but they must avoid political activity

Question 17

judicial neutrality is under threat, the judiciary is not entirely neutral

Answer 17

judicial neutrality is weakened because…

• the judiciary is unrepresentative
• growth in judicial activism

Question 18

judicial neutrality is under threat, the judiciary is not entirely neutral: UNREPRESENTATIVE

Answer 18

it is often pointed out that judicial neutrality is threatened by the fact that judges are unrepresentative of the wider public and tend to be drawn from a narrow social and gender background, making them less aware of the issues facing most people and perhaps being unable to truly empathise

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

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 and 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

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

Question 19

judicial neutrality is under threat, the judiciary is not entirely neutral: JUDICIAL ACTIVISM

Answer 19

judges are meant to be strictly impartial and non-political, but this neutrality has been weakened by the growth in judicial activism

this involves judges becoming more willing to get involved in political matters by launching outspoken attacks on government policy

to ensure neutrality, judges are discouraged from engaging in open political activity so the growth in judicial activism suggests that they have become too powerful

for example, Lord Woolf (the Lord Chief Justice from 2000 to 2005) spoke out against some of the provisions of the CRA 2005 and severely criticised the government’s handling of the constitutional reform process

similarly, Lord Neurenberger (the previous president of the Supreme Court) attacked Theresa May when she was home secretary in 2013 for criticising judges over their failure to deport foreign criminals, saying that her views were “inappropriate, unhelpful and wrong”

furthermore, the MPs expenses scandal gave rise to the issue regarding what circumstances the courts can intervene and make judgements on political matters

MPs argued that they were protected by parliamentary privilege which means that parliament should make the judgement, not the courts

however, the courts held that the expenses needed to be examined outside of parliament, some argued that this was a constitutional issue as judges were taking on the role that belonged to Parliament

these examples demonstrate the extent to which judges have become public figures willing to criticise the democratically elected government which suggests they are too powerful and political