Judicial independence is a constitutional principle requiring the judiciary to be kept separate from the other branches of government. This ensures that the law is enforced impartially and consistently, regardless of who is in power, and without undue influence from any other source. The doctrine protects the rule of law.

This principle is rooted in the theory of the “separation of powers,” which proposes that the state is divided into three distinct arms: the executive (the government), the legislature (parliament), and the judiciary. In this model, each arm acts as a check and balance on the power of the others.

The UK does not observe a strict separation of powers; government ministers are drawn exclusively from the legislature. Historically, the office of the lord chancellor fused all three branches. The lord chancellor was a cabinet minister, a senior judge and the speaker of the House of Lords.

The Constitutional Reform Act 2005

In July 2003, the government announced plans to radically reframe the relationship between the legislature and the judiciary.

Speaking in the upper chamber in 2003, the lord chancellor Lord Falconer declared: “The time has come to take the final court of appeal out of the legislature.”

The rights-based discourse that arose in the decades preceding the Constitutional Reform Act and the expansion of judicial review (with the Human Rights Act 1998) provided the impetus for reform of the historic role. Lord Irvine, lord chancellor from 1997 to 2003, raised questions about the legality, under article 6 (1) of the European Convention on Human Rights (ECHR), of the lord chancellor’s concomitant exercise of judicial and executive responsibilities.

This drive resulted in the Constitutional Reform Act 2005, which for the first time enshrined the independence of the judiciary in statute law.

The act introduced three main changes. Firstly, it drastically reformed the office of lord chancellor, removing the holder’s role as head of the judiciary and as speaker of the House of Lords. The role, now largely ceremonial, is held by the secretary of state for justice.

Secondly, the act established the judicial appointments commission (JAC), an independent body responsible for selecting candidates for judicial office in England and Wales. This ended the power of the lord chancellor to appoint judges, making the process more transparent and merit-based.

Thirdly, the act authorised the creation of a UK supreme court, separate from the House of Lords. This abolished the system of law lords and ended the historic judicial function of parliament.

The Ministry of Justice was created in May 2007; it has responsibility for courts, prisons, probation and constitutional affairs. Under the 2005 Act, the secretary of state for justice also officially holds the office of lord chancellor, albeit with the greatly reduced, largely ceremonial role.

In its original form, the Constitutional Reform Bill proposed the abolition of the position of lord chancellor. However, the bill underwent considerable modification during the legislative process; as a result, the lord chancellor’s role was retained under the terms of a ‘concordat’.

The UK supreme court

The UK supreme court began its work in October 2009. It is an independent institution that serves as the final court of appeal for all civil cases in the UK, and for criminal cases in England, Wales, and Northern Ireland.

The court is composed of 12 independently appointed judges, known as justices of the supreme court, and is led by a president. The president is Lord Reed of Allermuir.

Symbolically and physically, the court is separate from parliament, occupying its own building, the former Middlesex Guildhall, on Parliament Square.

Brexit and judicial independence

The 2016 referendum on Britain’s membership of the European Union (EU) and its aftermath placed the judiciary, and particularly the supreme court, under intense political scrutiny.

Article 50 ruling

In 2017, the supreme court ruled that the government could not notify the Council of the European Union of the UK’s intention to withdraw from the EU (formally triggering the process set out in Article 50 of the Treaty on European Union) under the royal prerogative.

The court ruled that the government required an act of parliament to trigger the process of leaving the EU.

Gina Miller, a business owner and transparency campaigner, had brought the case before the high court in 2016, arguing that the executive could not use the royal prerogative to effectively nullify previous acts of parliament relating to European integration. The government, led in court by the attorney general, Jeremy Wright, maintained that the 2016 referendum result represented a clear mandate for the executive to exercise prerogative powers.

On 24 January 2017, the supreme court ruled by a majority of eight to three that because the European Communities Act 1972 had incorporated EU law, only an act of parliament could authorise its removal. Delivering the verdict, Lord Neuberger, the president of the supreme court, said: “Withdrawal effects a fundamental change by cutting off the source of EU law, as well as changing legal rights.

“The UK’s constitutional arrangements require such changes to be clearly authorised by parliament.”

Prorogation ruling

On 24 September 2019, the supreme court unanimously ruled that Boris Johnson’s request for Queen Elizabeth II to prorogue parliament was unlawful. Eleven justices, led by Lady Hale, ruled that the prorogation was “void and of no effect”, meaning parliament could be reconvened the following day.

The leader of the House of Commons, Jacob Rees-Mogg, had convened a meeting of privy councillors which advised the queen to prorogue parliament on 28 August 2019. The approach was denounced by critics, including those within the Conservative Party, as an anti-democratic, unconstitutional ploy to bypass MPs – at a time when the parliamentary arithmetic was finely balanced.

Prorogation in order to secure a ‘no deal’ Brexit – the default legal position under EU law’s Article 50 process – had been a point of debate in the recent Tory leadership contest.

The supreme court noted its historical role in protecting “parliamentary sovereignty from threats posed to it by the use of the prerogative powers and in doing so have demonstrated that prerogative powers are limited by the principle of parliamentary sovereignty”.

The court added: “The sovereignty of parliament would, however, be undermined as the foundational principle of our constitution if the executive could, through the use of the prerogative, prevent Parliament from exercising its legislative authority for as long as it pleased.”

Reforming judicial review

Judicial review is a legal process where a judge examines the lawfulness of a decision or action taken by a public body. The process ensures that government ministers and other public authorities operate lawfully and within the limits of their powers.

The purpose of judicial review is not for the court to decide whether a decision was “correct” or explain its own view on a contentious issue. Instead, the court’s role is supervisory; it reviews the way in which the decision was made.

A court can find a decision to be unlawful on three main grounds: illegality, irrationality and procedural impropriety.

In the wake of the Brexit judgments, the Conservative 2019 general election manifesto included a pledge to ensure judicial review was not “abused to conduct politics by another means.”

The manifesto stated: “We will ensure that judicial review is available to protect the rights of the individuals against an overbearing state, while ensuring that it is not abused to conduct politics by another means or to create needless delays.”

This led to the independent review of administrative law (IRAL) and the subsequent passing of the Judicial Review and Courts Act 2022.

The Judicial Review and Courts Act 2022 introduced reforms to give courts more flexibility in the remedies they can issue, including the power to issue a “suspended quashing order” and a “prospective-only quashing order”.

A suspended quashing order declares a decision unlawful but suspends the effect of the order to give the public body time to correct the error with minimal disruption.

A prospective-only quashing order declares that a decision is quashed only for the future, meaning that any actions taken under the unlawful policy prior to the court’s judgment remain legally valid.

Diversity in the judiciary

There is an ongoing debate regarding the diversity of the judiciary.

The judicial appointments commission, established under the Constitutional Reform Act 2005, stated that candidates must be selected “solely on merit.” However, in section 64 of the Constitutional Reform Act, the commission is instructed to “encourage diversity” in the range of candidates available for selection. Critics argue that a judiciary that does not reflect society risks undermining public trust.

The Crime and Courts Act 2013 amended the 2005 legislation to qualify the “solely on merit” provision. It outlined that the commission should not be prevented, “where two persons are of equal merit, from preferring one of them over the other for the purpose of increasing diversity”.

This is referred to as the “equal merit provision”.

In the 2024-2025 period, the “equal merit provision” tie-breaker was used to advance 32 candidates at shortlisting and 6 candidates at the final recommendation stage.

According to the July 2025 official statistics, women now constitute 44% of all judges. However, female representation remains lower in the senior judiciary; female judges held 28% of the more senior posts (high court and above).

The proportion of ethnic minority judges has risen to 12% overall. This is still below the 17% found in the general working-age population. Furthermore, this representation is concentrated in lower-tier roles like district judges (15%). In the senior courts, ethnic minority representation is “generally lower” falling to 3% in the court of appeal.

Most notably, the proportion of Black judges has remained stagnant at 1% since 2015.

Upon his appointment in 2020, Lord Reed said the lack of diversity among the 12 supreme court justices was a situation “which cannot be allowed to become shameful if it persists”.

The debate over ‘judicial activism’

For several decades, some politicians and commentators have accused judges of “judicial activism,” arguing that they are increasingly willing to challenge the will of the democratically elected parliament.

The Human Rights Act 1998 is often cited as a key driver of this trend, as it empowered UK courts to rule on the compatibility of legislation with the European Convention on Human Rights.

This tension is not new. In the 1990s, the then home secretary, Michael Howard, was publicly criticised by senior judges over sentencing policy. In June 1997, Howard’s attempts to increase the minimum term for the killers of James Bulger, Jon Venables and Robert Thompson, were deemed unlawful by the law lords.

The European Court of Human Rights later ruled that the killers of toddler James Bulger did not receive a fair trial. The judges also found that Howard was wrong to intervene.

The high-profile constitutional rulings of the Brexit era brought the debate over the proper role of the judiciary into sharper public focus. On 4 November 2016, the day after the high court ruled that the government could not trigger Article 50 without an act of parliament, the Daily Mail published a front page featuring the three presiding judges – Lord Chief Justice Thomas, Sir Terence Etherton, and Lord Justice Sales – under the headline “ENEMIES OF THE PEOPLE.”

It was suggested that this headline, which was supported by some Brexit-backing MPs, had implications for the independence of the judiciary.

On 5 November 2016, Liz Truss, the lord chancellor, issued a statement in which she said: “The independence of the judiciary is the foundation upon which our rule of law is built and our judiciary is rightly respected the world over for its independence and impartiality.

“In relation to the case heard in the high court, the government has made it clear it will appeal to the supreme court. Legal process must be followed.”

During the 2024 Conservative leadership election, Robert Jenrick, who went on to become the shadow justice secretary, said that his party would “die” if they didn’t leave the ECHR and that it makes it “impossible to secure our borders”.

In June 2025, the Conservative leader Kemi Badenoch launched a review into whether the UK should withdraw from the ECHR, commenting that Britain “will likely need to leave” the convention.

Addressing the Conservative Party’s annual conference in October 2025, Badenoch announced that a future Conservative government will leave the ECHR.

In June 2025, justice secretary Shabana Mahmood told the council of Europe that Britain will pursue reform of the ECHR and that “public confidence in the rule of law is fraying”.

Quotes

“It is vitally important in a democracy that individual judges and the judiciary as a whole are impartial and independent of all external pressures and of each other so that those who appear before them and the wider public can have confidence that their cases will be decided fairly and in accordance with the law. When carrying out their judicial function they must be free of any improper influence. Such influence could come from any number of sources. It could arise from improper pressure by the executive or the legislature, by individual litigants, particular pressure groups, the media, self-interest or other judges, in particular more senior judges.” – Judiciary of England and Wales in 2012

“This Court has already concluded that the Prime Minister’s [Boris Johnson’s] advice to Her Majesty was unlawful, void and of no effect. This means that the Order in Council to which it led was also unlawful, void and of no effect and should be quashed. This means that when the Royal Commissioners walked into the House of Lords it was as if they walked in with a blank sheet of paper. The prorogation was also void and of no effect. Parliament has not been prorogued. This is the unanimous judgment of all 11 Justices.” – Supreme court president Lady Hale in 2019

“Across Europe, public confidence in the rule of law is fraying. There is a growing perception – sometimes mistaken, sometimes grounded in reality – that human rights are no longer a shield for the vulnerable, but a tool for criminals to avoid responsibility. That the law too often protects those who break the rules, rather than those who follow them. […] The European Convention on Human Rights is one of the great achievements of post-war politics. It has endured because it has evolved. Now, it must do so again.” – Shabana Mahmood, Justice Secretary, 2025.

Additional resources

• The Judiciary of England and Wales: https://www.judiciary.uk/
• The Supreme Court: https://www.supremecourt.uk/
• The Judicial Appointments Commission: https://www.judicialappointments.gov.uk/
• The European Convention of Human Rights: https://www.echr.coe.int/documents/d/echr/convention_ENG