For individual citizens rights to be protected it is essential that the judiciary is independent, otherwise the government could use machinery of the state and the judiciary itself to remove such rights. Judicial review is the process in which courts can question the exact legality of the governments actions, without judicial independence it is most certainly difficult to predict how effective the process of judicial review can be and how it can be carried out.
Judicial neutrality basically refers to judges serving justice in courts, that is not influenced by there background e.g. religious, social, gender, sexual, political or racial bias.. Judicial neutrality is a subject closely linked to judicial independence. Judges cannot be independent if they are not neutral and vice versa. Judicial neutrality means that judges should be neutral in their approach to the law, and in result to apply laws passed by Parliament in an impartial, unbiased and technical manner. Due to judges being appointed rather than elected, there are various ideas surrounding how neutral the judicial system remains. The majority of judges in the Supreme Court are white, middle-aged, males who attended private schools and completed their education in oxford/Cambridge. This holds suspicions over how biased some judges are.
Various arguments exist for and against the existence of judicial independence. One of the most controversial issues against the existence of judicial independence begins with the parliamentary sovereignty argument. If parliament is sovereign (as commonly described) it is almost impossible for the judiciary to be independent as it must be subordinate to parliament, and since subordinates cannot be independent consequently neither is the judiciary. A.V. Dicey had a solution to this: the most substantial defence of the rule of law, he said, was the sovereignty of parliament. Summed up, he means that parliament would fight to protect such an obviously excellent thing as the rule of law (and hence an independent judiciary). But what parliamentary sovereignty in practise means is that every aspect of the legal system is subject to parliamentary reform; parliament can demolish courts, alter the law and decide on what penalties and punishments are prescribed within the courts. In 2005 parliament under the control of a powerful executive (mostly labour), suggested the idea of the Terrorism act, which was a law permitting the home office to retain suspected terrorists for a longer period of time, which would normally be described as unfair. This action was slightly effected by huge public protest and media slander not to mention protest of the House of Lords, but even after some of these modifications, parliament effectively removed an important judicial power, not to mention an important civil right. A second argument is a simple one referring to the fusion of powers. Because in the UK, there is such a close fusion of powers in practise between the other two branches of government it is difficult to consider that this does not affect the judiciary, especially concerning its relations to the executive. The argument of the law lords is another argument against judicial independence. The most senior judges (the law lords), until the reforms in 2005 members of the House of Lords, (this role actually continued until they had retired). This enabled members of the judiciary to also be members of the legislature, which of course is a breach of judicial independence. The law lords, by convention, were not expected to take part in debates in the Lords, but it seemed obviously sensible to consult them of such laws that affect justice. In certain cases some law lords were quite active legislators. The constitutional reform act of 2005 invalidates this perfect illustration of a fusion of powers. Another case dismissing judicial independence is the existence of the Lord Chancellor. The head of the legal system and a judge (well he is in theory – despite the fact he very rarely judges) was before 2005, the Lord Chancellor. This title was appointed by the prime minister; the chancellor was a member of the government and sat regularly in the cabinet. In effect he was the leading parliamentary figure in the House of Lords, the second chamber of the legislature; he ran meetings there as the speaker does in the House of Commons. All of this was a good indication that the judiciary was indeed not independent. A subject often spoke about when talking about the independence of judges is how they are appointed. The system for appointing judges to the UK Supreme Court follows a two stage model known as ‘nomination & confirmation’. Appointments to the judiciary are made by the monarch, which means that in effect, until the reforms of 2005, judges were part of the government patronage. The prime minister appointed to the court of appeal and to the judicial committee of the House of Lords (the law lords), having required advice on his appointments from the Lord Chancellor. The Lord Chancellor would then appoint judges below this level. The appointment of judges currently however is thought to be less secretive and informal as previously. Labours reforms of 2005 passed all judicial appointments over to a Judicial Appointments Commission, again removing the threat to judicial independence. Another significant point to make is how the judiciary are paid and dismissed. Senior judges presently hold their role ‘while goof behaved’ and can be dismissed only by a vote in the two houses of parliament. This is an obvious act breaching judicial independence. However, such a movement has only been in practise once, when a judge was dismissed in 1830 for smuggling whiskey. The actual fact it was over two centuries ago may reassure us that that contemporarily the judiciary is independent, concerning parliament anyway. How much judges are paid has also been kept out of political debate since 1971, they’re salaries are determined by an independent body – the Top Salaries Review Body. The home office deals with police services, prisons and policies relevant to crime and law. They also run a government department which can pass legislation on matters concerned with crime with relative ease. This can compromise the independence of judges if these legislations affect how judges can in practise judge. An example of this is the imposition of mandatory sentences. This basically means that parliament make it compulsory for judges to impose certain sentences concerning murder and repeated offences. Such laws now also exist for gun offences.
The 2005 constitutional act now it has come into force has been said to remove many of the factors affecting the independence of the judiciary. It has replaced the law lords with a Supreme Court. This therefore dissolves the link between the legislature and the judiciary, created by the connection of the law lords with the House of Lords as legislators. The act ensures government ministers must ensure judicial independence exists. Ministers are actually barred from trying to influence judicial decisions via and special access to judges. It will create an Independent Appointments Commission to appoint judges, essentially removing the role of the Lord Chancellor and the Prime minister in this area. Judicial review is a process by which a government department or public body can be ‘reviewed’ by a judge if a British citizen feels that the department has acted wrongly. During judicial review the rule of law is applied to the government. This process has strengthened through the years and through judges decisions has clearly demonstrated the independence of the judiciary. Another argument is one that outlines a judge’s independence when they defend the rights of citizens. Evidence suggests that judges are quite willing to overrule a government body in the case of defending an individual’s right. The Human Rights Act of 1998 effectively enhances the role of judges in such scenarios. One of the most influential factors influencing judicial independence is the sub judice rule. This rule is widely acknowledged (and is pretty much mandatory to be) by Parliament and the government. When a certain case is ‘sub judice’ it means it is being dealt with by the courts, and it is thought that no public discussion should occur of it in Parliament, or the press, as this discussion may prejudice the case, by eventually influencing the judges or jury’s final decision. The fact that this ruled is closely complied with shows the recognition of the importance of judicial independence. Ministers are usually very careful on not commenting on individual cases in this way, although sometimes the odd one makes a slip - as Tony Blair did in 2004, by expressing his revulsion at the British soldiers in Iraq being trialled for committing war crimes. European influences also enhance judicial independence. This happens when an appeal is made to the European Court of Human Rights, which meets outside of Britain, this immediately establishes an independent court of appeal on matters of rights, if the court is exterior to Britain, it must be independent by interference of the British government. The same rule applies to the European Court of Justice, to which the British can also appeal on matters regarding European law. Finally the last argument for judicial independence is that concerning political culture. Every political party accepts the idea of requiring judicial independence and opposition parties would most definitely seize any evidence of pressure being exerted by government on courts if there were any. Anybody involved within a legal profession is aware that courts must be independent, so lawyers are careful to protect this judicial freedom; they have ample opportunities when in court if they feel that the case has been influenced effecting judicial independence. The Bar Association and Law society (these are two professional judicial independence protectors for lawyers) would be quick to condemn any attacks made on judicial independence. If a judge was discovered to have responded to political pressure during a trial it would certainly be on the grounds to be appealed. As with lots of other issues in British politics, this along with them is probable to be the best defence concerning the freedom of the press. There are other various pressure groups specialising in this area too, such as: Liberty, Charter88 and Justice.
After an overview of all of the points for and against judicial independence within the UK it is clear that there needs to be big change in order for it to actually exist. It is debated that the Civil Rights Act will enforce judicial independence although this is highly unlikely due to the executive and legislature’s powers to remove and alter these laws at any time. It seems that the only real answer to adopting judicial independence in this country would be to have a codified constitution, this way the government could not interfere on such issues as judicial independence and then we could eventually have a judiciary system that is in fact independent. A duplication of the American system would also seem a likely possibility to ensuring judicial independence, but how far our parliament are willing to go to ensure this aspect of our government exists, isn’t looking too good. Many are doubtful that our parliament will go as far as too adopt the American system as parliamentary sovereignty would then be abolished. However this and a codified constitution appear to be the only realistic options available for our judiciary to be independent.
