This is extremely important in a democracy where individual judges and the judiciary as a whole must be objective and free of all external influences and of each other to ensure that the people standing before them and the rest of society at large trust that their cases will be heard on merit and in accordance with the law. In executing their judicial role, they should not be in any way under improper influence. There might be any number of sources of such influence. It may be a result of executive or legislative pressure, pressure from individual litigants, pressure from pressure groups, media pressure, self-interest, or pressure from other judges, particularly more senior judges.
Historical development of judicial independence in the UK
The Act of Settlement, which was passed in England and Wales in 1701, established the basic idea of judicial independence. By stating that High Court Judges and Lords of Appeal remain in office for as long as they behave well, this act publicly recognized the concepts of judicial tenure security. Before a judge could be removed, proper and formal procedures had to be in place. Before 1701, senior judges were appointed at the whim of the sovereign, and numerous instances exist where judges were dismissed for not rendering decisions that complied with the King’s or Queen’s desires.
Legal and constitutional foundations of judicial independence
Each judge must be able to make decisions based only on the evidence that the parties have provided in court and in compliance with the law. A judge’s decision should only be based on pertinent facts and the law. Only in this manner can judges fulfill their constitutional duty to administer impartial and equitable justice; to administer justice “between man and man,” as Lord Brougham, a 19th-century Lord Chancellor, put it, or, more recently in 2005, “between citizen and citizen or between citizen and the state,” as former Master of the Rolls Lord Clarke put it.
Over the past century, as governmental functions have expanded, so too have the duties of judges in conflicts between citizens and the state. Thus, the requirement for the court to be independent of the government has grown along with its duty to defend citizens against illegal government actions.
The role of the Constitutional Reform Act 2005
In accordance with an agreement made in the 2004 Concordat, the CRA deposed the Lord Chancellor and gave the Lord Chief Justice leadership of the judiciary. In 2008, a Framework Document for the operation of the Courts Service (which was amended and expanded in 2011 to include the Tribunals Service) further clarified the separation of powers between the executive and judiciary. The Judicial Appointments Commission and a new Supreme Court were also established by the CRA.
The previous politics were secretive, with both sides maintaining each other’s confidences; closed, in that they were essentially the only interactions between the government and the judiciary; and informal, relying on frequent meetings between the Lord Chancellor and senior judges. In that neither side wants to alter the system, they were also conservative and cooperative. In contrast, the “new” politics are far more formal. In order to manage the ties between increasingly distinct arms of government, the CRA mandated more formal structures and procedures. Today, the CRA has produced the Judicial Appointments Commission, Judicial Appointments and Conduct Ombudsman, and Judicial Conduct Investigations Office.
How is the judiciary protected from external pressures?
Although one of the pillars of a democracy is an independent and unbiased court, the actual methods by which this is implemented are sometimes viewed with skepticism. An example is the judges who cannot be punished regardless of the actions they commit during the execution of their official duties. They are also insured against suits of defamation about statements they make about witnesses or parties at hearings. These beliefs have led some to infer that judges are somehow above the law. Saying that judges are above the law is incorrect, though. Just like any other citizen, judges are bound by the law.
Where a judge has been identified as having engaged in a crime, the Lord/Lady Chief Justice or the Lord Chancellor may refer them to the Judicial Complaints Investigations Office to decide whether they should be removed from office. Nevertheless, judicial independence does entail the notion that the judges should not be limited in the exercise of their powers to interfere with litigants, government, media, or even powerful individuals or groups such as big businesses. It is an important principle because judges often decide the conflicts between citizens and the state, and between citizens and powerful organizations.
Whether the judge is dealing with a criminal case or a civil case, judicial independence is imperative. Anybody involved in any court proceedings should be assured that the judge, dealing with his or her case, is not influenced by some external force or by his or her own personal interests, i.e., by the fear of being sued by litigants against whom the judge may have to make negative comments throughout proceedings or in a decision. The need imposed on judges to disclose their personal interests in any case before it begins to prevent bias, partiality, or the appearance of such is further supported by the necessity that they be free from improper influence.
The relationship between the Judiciary, Parliament, and Government
The Judiciary, Parliament (legislature), and the Executive (government) work together to ensure that there is a system of checks and balances that ensures that one arm of government does not attain too much power. The Judiciary, the interpreter of laws, decides cases, and the Executive controls the resources of the state and implements the legislation adopted by the Parliament. Though the degree of balance of power is also dependent on the country and over the years, their relationship is critical in the maintenance of the rule of law and in protecting the liberty of the people. The executive branch is composed of the Crown and the Government, which consists of the Prime Minister and the members of the Cabinet in the United Kingdom. Policies are made and implemented by the executive. The appointment of senior judges is done by the Crown.
Judicial accountability vs judicial independence
Judicial accountability in the UK ensures that the professional and legal duties of judges and institutions are to deliver effective, transparent, and efficient service, and judicial independence ensures the European courts are independent and not influenced by the government, media, and interest groups, which preserves the rule of law. While accountability is preserved by systems like parliamentary oversight and judicial conduct boards managing probity issues, as well as appellate courts assessing content, independence is primarily attained through tenure security and financial security. Although these two fundamental principles are often in conflict with each other, powerful regulatory frameworks such as the one that has been put in place by the Constitutional Reform Act of 2005 are aimed at aligning these two.
Judicial independence according to institutional protections.
The Constitutional Reform Act that was ratified by the Parliament in 2005 specifically recognises a constitutional value such as the rule of law. The Act ensures that judicial independence is safeguarded by requiring that the Lord Chancellor, the Secretary of State for Justice, and other government ministers ensure that it is enforced. They cannot, in fact, as can other MPs, seek to influence court decisions.
Parliamentarians, whether or not they are in government, are subject to stringent restrictions when speaking with judges to preserve judicial independence. For instance, speaking or writing to a judge about a particular case in an attempt to influence its conclusion would be unconstitutional.
The importance of an independent Supreme Court
The Constitutional Reform Act that was ratified by the Parliament in 2005 specifically recognises a constitutional value such as the rule of law. The Act ensures that judicial independence is safeguarded by requiring that the Lord Chancellor, the Secretary of State for Justice, and other government ministers ensure that it is enforced. They cannot, in fact, as can other MPs, seek to influence court decisions. In addition to being the most well-known and visible court in the UK, it also renders decisions on issues about the constitution and those with the greatest public ramifications. The UK is a global hub for resolving disputes and has a reputation for respecting the rule of law.
Two recent studies claim that the UK is the world’s preeminent hub for international dispute resolution through court litigation and, on par with Singapore, arbitration. Our country’s prosperity depends on the courts’ ability to protect the rule of law and preserve international trust in the UK as a stable, rule-governed democracy. Because of this reputation, the UK is now one of the biggest legal services markets in the world, second only to the USA in terms of income.
Challenges and contemporary issues in judicial independence in the UK
The key modern problems and questions of judicial independence in the UK are:
- Political/government interference: It is feared that the UK government will interfere with or limit the ability of the courts to examine or question executive activities, undermining judicial review and external power constraints. This is, in part, observed in the unorthodoxy of the rule of law that undermines protection.
- Financial and resource limitation: The judiciary has suffered a steep cut in state funding (22 percent since 2009-10), which has resulted in backlogs, poor infrastructure, and overloading of the judiciary, which has affected the effectiveness and independence of the judiciary.
- Concerns of internal judicial independence: The absence of effective avenues of judicial complaint, judicial discrimination, judicial bullying, and judicial hierarchical challenges are issues that influence internal judicial independence and judicial morale.
- Inability of the government to follow the court order: The rising cases of the government failing to execute a court ruling against its interests deprive the institution of independence and citizen trust.
- Media and social pressure: Judges are subjected to inappropriate social and traditional media pressure, with some efforts aimed at undermining the judiciary, interfering with public trust, and the judgments made by the judges.
Although judicial integrity is high and the cases of corruption are far between in the UK judicial system, such systemic and political pressures are a persistent threat to successful judicial independence.
The threats to the independence of the judiciary in the UK today are serious threats to the rule of law and the constitutional balance. The erosion of traditional safeguards of judicial independence by political interference, such as attacks by government ministers on judges, and the increasing politicisation of key office-holders, such as the Lord Chancellor.
