Judicial Independence

What is judicial independence?

Most constitutional theories require that the judiciary is separate from and independent of the government, in order 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 Executive, Legislature and Judiciary, whereby each arm acts as a "check and balance" on the others.

However, this doctrine is not observed in the UK. The Executive (the Government) is drawn exclusively from members of the Legislature (Parliament), while in the office of the Lord Chancellor the three arms are fused: the Lord Chancellor is a Cabinet Minister, a member of the House of Lords and the head of the Judiciary.

In the UK, judicial independence is secured by a number of provisions. Firstly, judges' decisions in their cases are final and authoritative (albeit subject to appeal), and reflect the individual judge's judgement. Secondly, judges enjoy security of tenure during "good behaviour" (ie provided they are not found guilty of criminal offences), unless unseated by a resolution of both Houses of Parliament. Thirdly, judges' pay is set by the recommendations of the Senior Salaries Review Body, whose recommendations are rarely if ever rejected by Parliament. Fourthly, judges are forbidden from acting as directors of private companies, and are required to remain uninfluenced by any outside organisation or person - including other judges.

The means by which judges are appointed has long been seen as a critical element in ensuring independence. At present, the post of Lord Chancellor is appointed by the Prime Minister, while the Law Lords are appointed by the Prime Minister on the recommendation of the Lord Chancellor. All other judges are appointed by the Lord Chancellor, although High Court appointments are "customarily" made after consultation with senior judges. A Commission for Judicial Appointments exists to monitor these appointments and to investigate complaints, but at present its role is purely advisory.

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 upgrade the role of the Commission, so that it would make appointments itself or nominate candidates to a responsible minister.

Background

Although today's judiciary has its origins in 1178, when Henry II appointed five members of his personal household "to hear all the complaints of the realm and to do right", and although the role of Lord Chancellor is understood to date back to the 7th Century, the notion of judicial independence from the power of the executive did not secure its victory over arbitrary Royal prerogative until the Act of Settlement of 1701.

On inviting William of Orange to take the Crown from James II in 1688, Parliament presented its "Heads of Grievance", amongst which were proposals for freeing the judiciary from the interference it had suffered under the Stuarts. Although these measures were omitted from the Bill of Rights, William III observed the constitutional proposals, which were enacted in 1701.

The "Glorious Revolution" thus established the rule of law in the place of the will of the monarch, although in the absence of a "written constitution", the doctrine of Parliamentary sovereignty meant that the law was whatever Parliament voted it to be.

The 18th Century saw a flourishing of political and constitutional theorising, with the "separation of powers" doctrine receiving its most fluent expression in "L'Esprit des Lois" by Charles, Baron de Montesquieu, in 1748. This and related works were a clear influence on the Founding Fathers of the United States, who explicitly adopted a separation of powers on achieving independence. Characteristically, however, Britain resisted this constitutional innovation, preferring development on the basis of precedent and experience - a tradition that leads directly to the situation today.

Although Parliament retains the power to repeal the laws ensuring the independence of the judiciary, they have long been respected by convention. Only once has a judge been removed by a resolution of Parliament (Sir Jonah Barrington, a judge of the High Court of Admiralty in Ireland, in 1830), while provisions for the removal of a Circuit Judge have also been invoked only once, in 1983, against a judge who confessed to acts of smuggling.

In recent times, the Human Rights Act 1998 - which incorporated the European Convention on Human Rights into UK law - has had a substantial impact on the balance between the Government and the judiciary. By giving judges the power to rule that domestic laws are incompatible with the Convention, the doctrine of Parliamentary sovereignty has been partially replaced with a body of "prior" constitutional law. Moreover, by requiring judges to interpret domestic law in line with the Convention, the Act has resulted in a number of judgements setting precedents in conflict with the Government's intentions (previously protected by the Pepper Vs Hart doctrine).

Controversies

Constitutional reformers have long 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 "works", has meant that this argument has little appeal amongst the wider public.

Nevertheless, to the surprise of many, in July 2003, the Government announced radical plans to reform the judicial system. The speed with which they were brought out led many to suggest that the plans were not well thought out: 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. However, the House has accepted those elements of the Bill relating to the appointments commission and the end of the Lord Chancellor's active judicial role.

The past 25 years have seen a growing judicial activism. Part of this stems from the growing body of supranational jurisprudence growing out of the UK's entry into the European Union, and part from the abandonment by governments of the postwar political and legal consensus. However, 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, and an increasing willingness on the part of judges to speak out on political issues (notably that of the Lord Chief Justice, Lord Woolf), have lead 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.

The Government's efforts to broaden the diversity of the judiciary have also been criticised on the grounds of independence. Proposals for encouraging a "career" judiciary, open to younger candidates rather than only to well-established lawyers, wou