To what extent are judges neutral and independent?

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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.
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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 ...

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