To what extent are judges neutral and independent?
To what extent are judges neutral and independent? (40 marks)
Lewis Fairfax
Judicial independence and neutrality are very important concepts within the British judicial system. Judicial independence is the separateness of judges from the government, be it through government over-influence or pressure or simply the fact that their payroll is not paid by the government. Judicial neutrality is the idea that the judges themselves are not prejudiced in any way against any race, gender, sexuality etc. Both are very important in the British legal system as without one or both of them justice cannot be truly channelled and distributed to the people (which is ironically one of the functions of judges in our country.
Firstly, we must consider to what extent our judges are independent from the government and other external influences.
Judicial independence is definitely very important. Judges act as a check for the government. Without their independence, the government is a tyranny as no-one can check what it is doing and stop it when it is ultra vires. This independence also prevents discrimination as it protects the rights of citizens against any government agenda, extant or not. It also serves the function of ensuring that judges are selected on a neutral basis to prevent conflict with the government. But are our judges independent?
Firstly, the measure of security of tenure shows that our judges are indeed independent. It means that judges cannot be removed from their positions by the government based on the decisions they make, nor can their salaries be reduced for similar reasons. This means that they can make what they consider to be fair and right decisions without fear of dismissal, even if their decisions offend the government of the day. This guarantees independence as it makes sure that judges make the correct, just decisions without any pressure from the establishment - indeed often they rule against the government in judicial reviews.
Secondly, the rule of contempt of court is a fairly unique system of the British courts. If any government official interferes with the result of a court case or comments on a case in public or Parliament, they can be criticised in Parliament itself and even be tried in a court for being in contempt of court. This prevents political pressure being placed on judges by the executive or legislative and therefore allows them to make a just decision. If they believe there has been too much govt. influence, they may release the defendant citing a mistrial, another incentive for the government to stay out of affairs so judges can make a fair and uninfluenced decision.
Thirdly is the strict process of appointments into the judiciary. Despite the fact that the Lord Chancellor and the PM jointly appoint higher judges, any obvious political bias would cause an uproar in Parliament, damaging the government, so they tend not to do this to save face, which means that judges appointed are not simply government cronies, which guarantees that the judges that are extant are uninfluenced and may even have no connection with the government whatsoever, allowing fair justice to be dispensed. Also on this point, the Appointments Commission can object to any appointments it believes to ...
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Thirdly is the strict process of appointments into the judiciary. Despite the fact that the Lord Chancellor and the PM jointly appoint higher judges, any obvious political bias would cause an uproar in Parliament, damaging the government, so they tend not to do this to save face, which means that judges appointed are not simply government cronies, which guarantees that the judges that are extant are uninfluenced and may even have no connection with the government whatsoever, allowing fair justice to be dispensed. Also on this point, the Appointments Commission can object to any appointments it believes to be politically biased, again damaging the government and making sure that judges are not chosen simply because they are friendly with the government and therefore that those who give out justice are free to do what is just.
Finally, the fact that all senior judges have experience guarantees their lack of government influence. Most High Court judges will have served for 30-40 years as a barrister, meaning that they are accustomed to judging on the strict basis of what is lawful and what is not, and on that basis alone. This makes sure that they give a just decision based on their own experience and the law rather than pressure or their own opinions, which means that justice is dispensed correctly and fairly.
However, there are also some ways in which judges in the UK are not independent. Firstly is the position of the Lord Chancellor, who in the fusion of powers system overlaps between the executive and the judiciary as he is a major part of the government as well as the head of the courts system. This is a theoretical risk; he could technically manipulate judges, cases and appointments, however this is largely unlikely, as with appointments, any obvious bias or meddling would soon be uprooted and damage the government. Also, his position is being reformed as of 2008 to give him less government influence. However, the risk is still there that this could affect justice and cannot be ignored.
Secondly is the threat of political dialogue to judicial independence. In recent years, politicians such as the Home Secretary have set sentencing policy rather than leaving it to the judges themselves. The protection of prisoners' human rights as well as the sentencing policy can put pressure, albeit indirect, on judges to do what the government wants rather than using their own initiative, and this could affect justice as the government's opinion is not always necessarily correct.
Thirdly is the fact that appointments are overseen by the Prime Minister. While the Judicial Appointments Commission is responsible for appointments, the PM has a veto on any recommendation they make. Again, this is a very theoretical risk (along with the Lord Chancellor), but cannot be ignored and could lead to government-controlled judges which would lead to a tyranny as no-one would check the government's actions.
Finally, another argument against judicial independence is the presence of the Law Lords, who overlap the legislature and the judiciary, as they are the highest appeal court in the UK and yet they sit in the House of Lords and are involved in the legislative process. This means that their political and judicial independence isn't guaranteed - they are open to government influence. However, there are only 12 of them and they are being re-sited to a new building, the Supreme Court, in 2009. The link between their sitting in the Lords and lack of independence is fairly tenuous, without any evidence that this has occurred.
So, to sum up, I would definitely conclude that our judges are definitely independent from external pressure in the UK. The security of tenure and contempt of court measures far outweigh the risks, which are by and large highly theoretical and unproven - after all, our government isn't a tyranny (yet!).
Now we move on to the equally (and some might say more) important issue of judicial neutrality. This means that judges are socially representative, and not racist, sexist or otherwise internally prejudiced or discriminative.
Firstly, the arguments for judicial neutrality. It is important that our judges are neutral as otherwise (in their job as mediators and deciders) justice and any decisions they make based on the characteristics of a person will be unfair (it is for precisely this reason that previous criminal convictions are not allowed as evidence in a court case).
A starting argument is that in recent years a large number of judgements have fallen in favour of individuals and minorities - the Mental Health Act case ruled against the government by deciding that it was the responsibility of the state, not the citizen to prove that someone was too dangerous for public release. Also, the Belmarsh case said that the government could not detain terrorist suspects without trial. This shows that judges are defending citizens' rights rather than siding with the government - and shows both judicial independence and neutrality as they choose to side with citizens and the protection of individual rights rather than the government and its intervention. This is in contrast to in the 1980s, when the majority of judicial reviews ruled in favour of the government, especially those regarding trade unions such as the GCHQ ruling which determined that security service members could not join a trade union.
Secondly, the Human Rights Act aids judicial neutrality by allowing judges to use the powers of the state to defend individual rights. This shows that they are neutral as both political parties have attempted to reduce the Act's influence so that they can get more of what they want done as judges are using it to denounce their rulings and creations and shows that judges prefer to give citizens a chance in the same line as the recent trend for judgements to help citizens. This ensures that the government does not get too powerful and become tyrannical - stepping over its powers, known as being ultra vires (Latin for 'beyond the powers').
Thirdly, the classic "Oxbridge bias" among judges is starting to disappear. In the past, 78% of judges went to university at Oxford or Cambridge, and 70% went to private schools. This is starting to become less evident as more judges from less privileged backgrounds take over - meaning that more liberal judges willing to criticise the government such as Lords Woolf, Hoffman and Bingham are entering the fray and making sure that judicial bias does not affect the rulings of courts by the fact that judges meet a very specific model.
Finally, the fact that senior judges have been criticised by both major parties shows that they are not biased towards the government. Usually, judges would not be criticised (due to the rule of contempt of court), but these criticisms show that they have no political bias as both sides disagree with them. This means that neither party gets judges to do what it wants.
However, there is also a case that judges are not neutral. The main argument for this is that judges are largely unrepresentative of society - 80% of judges are male, 78% went to Oxford or Cambridge, and 70% are from private schools. Only 1% of High Court judges are from ethnic minorities. They almost all come from the middle or upper classes. This narrow social and professional background means that in cases involving lower classes, homosexuals (many conservative judges may secretly oppose homosexuality) or trade unionists, it is essential that judges are not biased otherwise the verdict of the case could be greatly affected for the worse. However, again with many of the counter-arguments for independence and neutrality, this is a theoretical risk. Many conservative judges may still be unbiased (indeed I presume they are).
Secondly, judges are lawyers and tend to favour public order rather than individual citizens' rights, preferring to favour the interests of the state, which would suggest that they are biased towards the government. This was certainly true in the 1980s, in cases such as GCHQ. However, the recent trend of judges preferring to support human rights disproves this theory, and again is largely and individual and theoretical risk.
The final point is that most judges are more conservatively-minded than liberal. In a similar position to the other arguments, this suggests that they may rule against liberals, socialists, communists, homosexuals, or trade unionists. However, the fact that both parties have criticised judges shows that the have no political bias.
To sum up, the argument against judicial neutrality is largely a fallacy, assuming that just because a judge is conservative and upper class, they will discriminate against all those that are not like them. This is most certainly not true or our country would be a tyranny. I can only conclude by saying that judges are certainly neutral, with only maybe a little bit of bias that is not reflected in the verdicts of most judges.
And in finally concluding, I can definitely say that judges in this country are independent and neutral. While there are some small points against independence that cause some doubt, most of the arguments against these two key principles are theoretical - and as such the arguments against are very strong that they are - our country is not a tyranny and our judges are independent, neutral and unbiased as well as free from government influence.