1a) With reference to the source, describe the measures that exist to maintain the independence and neutrality of the judiciary. The independence of the judiciary from the executive and legislative is said to kept by things like their fixed salaries and sub judice rule. Their salaries ‘are paid from the Consolidated Fund’ and aren’t fixed or changeable by Parliament or the government which keeps the judiciary free from political pressure in terms of finance. The sub judice rule is where the MPs in the House of Commons are unable to comment on current or pending cases.
This keeps the judiciary free from political interference and prevents prejudice against judicial decisions. This rule is followed by ministers and civil servants too. Judges are said to be kept neutral because they lack politically ‘partisan activity’ as they don’t comment on ‘matters of public policy’ and avoid siding with different party governments. Another way the judiciary has been made increasingly independent and neutral is the changed position of the Lord Chancellor following the ‘2005 Constitutional Reform Act as he was previously the ‘head of the judiciary, the presiding officers of the House of Lords and a member of the Cabinet’.
This Act removed his judicial role and transferred it to the Lord Chief Justice while also separating the ‘law lords’ from the House of Lords via the ‘establishment of a new Supreme Court’ in 2009. This again, separates the judiciary from the legislature and executive which enhances independence and neutrality. 1b) With reference to the source and your own knowledge, explain how the judiciary has been reformed since 2005. The judiciary has had major reforms implemented since 2005 under the Constitutional Reform Act of 2005 which aimed to enhance the independence of judges from the legislature and executive.
First of all, the role of the Lord Chancellor was altered as he was previously the head of the judiciary, was a member of the government as he was in the cabinet, and was also a presiding officer of the House of Lords as he chaired meetings like the Speaker does in the House of Commons. There were debates that this meant the judiciary wasn’t independent as the Lord Chancellor belonged to all three branches of government: the judiciary, legislature and executive. He was also seen as a ‘political appointment’ by the Prime Minister.
However the 2005 Constitutional Reform Act resulted in the transfer of the judicial functions from the Lord Chancellor to the Lord Chief Justice who is now responsible for the training, guidance and deployment of judges. The Lord Chancellor also no longer sits in the House of Lords as a Speaker was elected in 2006, separating the link between the legislature and judiciary. In addition to this, there was the creation of the Ministry of Justice in 2007 which became responsible for things like courts, prisons and probation.
The power to appoint judges has also been taken from the Lord Chancellor and passed onto the Judicial Appointments Commission. The creation of the Judicial Appointments Commission in 2006 transferred all judicial appointment powers in England and Wales from the Prime Minister and the Lord Chancellor to the Appointments Commission. Prior to this, the Prime Minister would appoint the Court of Appeal and Law lords with advice from his Lord Chancellor. Judges below this level were appointed by the Lord Chancellor.
This was seen as part of government patronage and the question of whether the judges appointed were free from partisan bias arose. The creation of this Appointment Commission however ensures that those that are nominated are politically independent from the executive. Finally, there was a reform of the most senior judges in the UK. Initially senior judges (Law Lords) were members of the House of Lords which meant that the judiciary was part of the legislature.
Although the judges weren’t allowed to play a role in political debates or proposals of legislative by convention, they were still consulted on matters close to their interests. It was, therefore, seen as a breach of judicial independence. However following the creation of the Supreme Court in 2009, senior judges no longer sit in the House of Lords which means are free of political influence and decision making – and in effect – from the legislature as they can speak out against the government.
1c) To what extent are UK judges both independent and neutral? Judicial independence is based on the freedom of the judiciary from the interference by the two by the two other branches of government: the executive and legislature, in its activities, as well as freedom from pressure exerted by the media or public opinion. Judicial neutrality is the absence of bias in the judiciary for example; religious, social, gender, political or racial bias. UK judges are generally seen to possess both independent and neutral
qualities. They are independent and neutral to a large extent as the Constitutional Reform Act in 2005 has increased their independence and existing measures such as security of their job and salary, as well as sub judice rule, the growth of judicial review and increased European influence maintains existing independence. Neutrality is increasing the judiciary as its social representation is improving and the biased attitudes of judges towards national security have been changing.
However independence and neutrality is still limited as there have been biased judgements against certain social groups, biased judgments in favour of national security, and their recruitment is unrepresentative and selected from a narrow section of society. The principle of parliamentary sovereignty creates a tendency for judges to favour the government rather than rule against it and finally, the Lord Chancellor’s judiciary role may have been transferred but there still remains political influence over it. Therefore UK judges are independent and have become neutral to a large extent but there are still some limitations on this.
First of all the Constitutional Reform Act of 2005 has greatly increased the independence of judges as it resulted in the removal of the Lord Chancellor in the House of Lords by replacing him with a Speaker since 2006. His power to appoint judges with the Prime Minister was also transferred to an independent Judicial Appointments Commission. The act also reformed the office of the Lord Chancellor by passing on his judicial functions to the Lord Chief Justice – a judge with no link to the legislature and executive, who is now responsible for the training, guidance and deployment on judges.
Finally the Act created a new Supreme Court in 2009 which shifted the Law Lords from the House of Lords to a building separate from the legislature. This shows that the judiciary has become independent from both the legislature and the executive as the Lord Chancellor no longer sits in the House of Lords, the senior judges no longer sit in the legislature and political patronage of the judiciary no longer exists due to an Appointments commission, thus increasing greatly the independence of judges.
Secondly the increased use of Judicial Review in the past forty years suggests that the neutrality and independence of the judges has improved. The Judicial Review is a process where the judge ‘reviews’ the action of the government or another public body if a citizen feels like they have acted wrongly. This process applies the Rule of Law to the workings of the government and public bodies such as citizens being treated equally.
For instance there have been many judicial review cases against the Home Office and its immigration regulations where the court has reprimanded against the government department. Judges have also exercised their powers in declaring the actions of ministers ultra vires for example Conservative Michael Howard’s extension of sentences for Bulger killers were ruled unlawful. This indicates a high level of neutrality as the judges weren’t biased towards supporting the government. However it can be argued that this is very rare as only 16 out of every 1,000 cases were won by citizens in 2011.
Since the Human Rights Act in 1998 (which was enacted in 2000) judges have been unafraid to rule out any incompatible government policy with the ECHR (1951). For example in October 2007, senior judges ruled that 18-hour curfews breached civil liberties under the ECHR. There have also been declarations against anti-terrorism legislations such as in 2004 when Law Lords opposed the detention of suspected foreign terrorists in British prisons without trial, using the HRA which led to alterations of the Terrorism Act in 2005.
In fact if parliament fails to address cases which have been ruled unlawful by judges under ECHR, the case can be taken to the European Court of Human Rights which is clearly an independent court of appeal since the court is outside of Britain and therefore free from the interference of the British government. This shows that judges are highly independent enough to be able to declare incompatible legislations passed by parliament under ECHR and if they are ignored, then the case reaches a fully independent European Court of Appeal which usually obliges Parliament to alter its legislation.
It is also argued that the pay and conditions of employment of the judiciary keep it free from corruption and political pressure. They have security of tenure which means a judge cannot be dismissed as they are appointed for life (the retiring age being 75), subject to appropriate behaviour. In order to be removed a judge must be voted out by both Houses of Parliament. However this has not happened since 1830 which suggests that the Parliament also respects the judiciary’s independence. Secondly, salaries are paid by the independent Consolidated Fund rather than the government, keeping them
free from possible corruption. This shows that judges are very independent from the executive and legislature as they aren’t under political pressure from possible dismissal and keeps them neutral as they don’t have to favour the government in fear of losing their job or reduction of their pay packet. Finally the sub judice rule shows that there is an acceptance of the need for judicial independence. It is observed in both the House of Commons and House of Lord, preventing MPs and Lords from discussing publicly any current or pending court cases. A similar rule is followed by ministers by convention.
This ensures that the judiciary is free from the interference of the executive and the legislature as it prevents prejudice of court proceedings by influencing the judge or jury. It also prevents parliament from acting as an alternative forum to decide court cases. However in 2004, an ex-Prime Minister, Tony Blair expressed his revulsion at the crimes committed by some British soldiers in Iraq despite them being tried by a court martial at the time, which shows that sometimes the temptation to break the sub judice rule cannot be resisted and may result in an attack on the independence of the judges.
On the other hand it can be said that the neutrality and independence of UK judges are limited as in theory, parliamentary sovereignty is greater than the rule of law. This was suggested by A. V. Dicey which he described as the twin pillars of British Constitution. This in effect means that the judiciary is subordinate to Parliament and is therefore not independent. Parliamentary sovereignty means that parliament can reform every aspect of the legal system: it can abolish courts; alter the law and decide on what penalties and punishments are applied in courts as it can pass any statutes which the courts must follow.
For example in 2005, under a powerful executive, parliament passed its Terrorism Act which meant that terrorist suspects could be imprisoned or detained without trial. This suggests that Parliament had the supremacy to override the rule of law whereby everybody is entitled to a fair trial. However it is argued that the law lords had opposed this legislation due to its attack on civil liberties which resulted in alterations of the legislation. Even if rulings of the judges were ignored by Parliament, the judges would be able to appeal to the European Courts of Human Rights which would eventually oblige the British government to alter the law.
There is also an argument initiated by J. A. G. Griffiths in his book Politics of the Judiciary, published in 1977 which suggests that the judiciary is recruited from an extremely narrow social background, making it biased and therefore neutral. The UK’s judiciary remains overwhelmingly middle-aged, upper-middle class, white males. Only 8% judges are women and the average age is 60 years. In fact there was never a female in the senior judiciary until 2003 when Brenda Hale was appointed. There is also no ethnic minorities in the senior judiciary with only one being a High Court judge.
In terms of education, Labour Research found that 100% of the senior judges since 1997 were Oxbridge educated and 60% of the judges in general were educated at Oxbridge with 67% who went to a public school. This means the judiciary is unrepresentative of the society in which its decisions will affect and it may cause the tendency for judges to make slightly prejudiced judgements towards women and different races. For example in 2001, riots in an Asian area of Maningham, Bradford, which had racial aspects, led to far stiffer sentences than those imposed on a white area in Bradford which had had similar disturbances.
Anti-female bias among the judiciary has also occurred where judges have been unsympathetic towards female rape victims and have imposed little sentences to rapists. However it is important not to dismiss that the Judiciary is becoming increasingly, although very slowly, more representative of society and one’s social background doesn’t necessarily make them biased. Also, the fact that the law is extremely complex means that judges from Oxbridge are likely to be highly educated which is necessary in order for the law to be interpreted appropriately.
There has also been evidence to suggest that the neutrality of the judiciary is still limited as it favours the government. For instance judges ruled in favour of government in 2010 when claimant teenagers, Katy Moore and Callum Hurley applied for a judicial review action over the raise in university tuition fees to a maximum of ? 9,000, which was introduced in September 2012. This is partly because of parliamentary sovereignty has judges understand that the government have the mandate to make decisions in the best interests of the nation.
Even Lord Woolf (ex Lord Chief Justice) admitted that for every case that the government lost, it won more than ten. This shows that the judiciary remains biased in favour of government to some extent which threatens neutrality. The fact that any high profile cases lost by the government creature the ‘illusion’ that the judiciary acts independently from the other branches of government can be argued to show that some political pressure may exist. In fact Theresa May used the Sunday papers this year to demand that judges follow the wishes of parliament and deport more foreign criminals. (The Spectator, 18 February).
This shows that the independence of the judiciary is still retrained as the executive are demanding things over newspapers. Finally it is argued that the separation of powers between the judiciary and the two other branches is only quasi-independent as the Lord Chancellor’s functions haven’t disappeared after the 2005 Constitutional Reform Act. Instead his functions were transferred to the Lord Chief Justice and Lord Speaker while his judicial role has merely been amalgamated with that of the Secretary of State for Justice who leads on policies for courts, prisons and probation despite being an MP in the House of Commons.
This suggests that the courts are still subject to the executive and legislature and therefore judges aren’t fully independent. It is also said that the Lord Chancellor and Prime Minister have secret surroundings in the appointments procedure of judges as the judiciary is exclusively drawn from the Bar. The fact that the profession is drawn from such a narrow base via a process with little real transparency makes it questionable on whether the judiciary is truly independent.
In conclusion the UK judiciary is becoming more neutral and independent to a large extent as the Constitutional Reform Act of 2005 led to changes regarding the Lord Chancellor and the establishment of both the JAC and the new Supreme Court. The HRA (1998) has also enabled judges to rule out laws incompatible with the ECHR and there has been a growth in judicial review. The independence and neutrality of judges has also been maintained through security of tenure and salary as well as sub judice rule. However one must be aware that there are still some barriers that remain to full independence
and neutrality due to the principle of parliamentary sovereignty, a narrow recruitment of the judiciary and the examples of the biased judgments in the judiciary. Even if there is reasonable independence, this can still be questioned due to the lack of transparency for example in the appointment of judges. Therefore, although the UK judiciary still has limits to its full independence and neutrality, it is still independent and neutral to a large extent and this continues to increase through things like increased judicial review.