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

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.

These plans provoked considerable controversy and eventually the then Prime Minister, Tony Blair, decided to modify rather than abolish the ancient role of Lord Chancellor. The reform of the Lord Chancellor's role has separated its different responsibilities and made a clear distinction between government, Parliament and the judiciary.

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.

However, the independence of judges in the UK is protected in several ways:
Judges are independent of the executive and the legislature - and vice versa - and do not get involved in political debate. Apart from modern rules relating to age and health, judges of the High Court and above cannot be removed from office without an address passed by both Houses of Parliament. And judges are almost entirely immune from the risk of being sued or prosecuted for what they do in their capacity as a judge.

The Constitutional Reform Act 2005, which came into force in April 2006, considerably modified the role of the Lord Chancellor and in so doing, strengthened the independence of the Judiciary.

In April 2006 a new Judicial Appointments Commission began to operate. This ended the Lord Chancellor's position as head of the judiciary (courts of law in England and Wales) and power to appoint judges. And in July of that year, members of the House of Lords elected their first Lord Speaker. This new role assumed some of the Lord Chancellor's responsibilities, such as chairing debates in the Lords' chamber and speaking for the House on ceremonial occasions.

The Ministry of Justice was created in May 2007; it has responsibility for courts, prisons, probation and constitutional affairs. The present Lord Chancellor combines his role with that of Secretary of State for Justice.

The judicial function of Parliament ended in 2009, when an independent UK Supreme Court was established. The court assumed the jurisdiction of the Appellate Committee of the House of Lords and the devolution jurisdiction of the Judicial Committee of the Privy Council. It is an independent institution, presided over by twelve independently appointed judges, known as Justices of the Supreme Court.

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 had 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 through: 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 of Lord Chancellor. However, the House 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 former Lord Chief Justice, Lord Woolf), have led 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.

Statistics

Judicial statistics:
Justices of the Supreme Court - 12 [Women 1]
Heads of Division - 5 [Women 0]
Lords Justices of Appeal - 37 [Women 3]
High Court Judges - 108 [Women 16]
Judge Advocates - 9 [Women 1]
Deputy Judge Advocates - 5 [Women 1]
Masters, Registrars, Costs Judges and District Judges (PRFD) - 48 [Women 13]
Deputy Masters, Deputy Registrars, Deputy Costs Judges and Deputy District Judges (PRFD) - 80 [Women 31]

Circuit Judges - 680 [Women 101]
Recorders - 1233 [Women 201]
District Judges (County Courts) - 448 [Women 110]
Deputy District Judges (County Courts) - 640 [Women 186]
District Judges (Magistrates' Court) - 143 [Women 37]
Deputy District Judges (Magistrates' Court) - 151 [Women 41]

[PRFD - Principal Registry of the Family Division]

Source: Judiciary of England and Wales - 2010

Quotes

"To be the judges and magistrates ... we need to be intelligent, knowledgeable about the law, but more importantly perhaps, wise in the ways of the world, sensitive to others from different backgrounds to our own, fair and open-minded and balanced, independent in spirit, courageous to do what is right even when it will be unpopular: perhaps indeed most of all when it will be unpopular, whether with politicians, the executive, or the media."

Lord Judge, Lord Chief Justice - 2010