Independence of the SC/judiciary

Maintenance of independence of judiciary - security of salary

• Salary of judges guaranteed to ensure security of salary

• Removal of fear of political pressure or influence

• Senior Salaries Review Body (non-political) makes recommendations on judicial salaries but still need to be voted on in Plmt and are not always passed, especially during austerity

Maintenance of independence of judiciary - security of tenure

• Security of tenure means judges remain in office until when they retire at 70, so do not fear being fired or demoted

Maintenance of independence of judiciary - removal of a judge

• SC justice can only be removed by a vote in BOTH houses, which hasn’t happened since 1830

  • Not for their decisions, but for misconduct

• Judges unable to be removed on grounds of decisions they made

  • Can only be removed due to corruption or personal conduct incompatible with being a judge

Maintenance of independence of judiciary - enshrined in CRA

• All ministers and Lord Chancellor must uphold continued independence of judiciary

• Separation of powers included in CRA

Maintenance of independence of judiciary - appointments process

• CRA established Judicial Appointments Commission to ensure no concerns about political interference in appointments process

Maintenance of independence of judiciary - ministers and the rule of subjudice

• Only convention, can be defied

• Govt should not use its contacts in the judiciary to influence political decisions

• Ministers should refrain from commenting on decisions, whichever way they went

• Subjudice- Plmt cannot debate matters currently before the courts

Maintenance of independence of judiciary - judicial restraint

• Judges exercise restraint and refuse to make decisions/take second hearings on issues they believe could be political

  • E.g. 2014, assisted suicide - Nicklinson v Ministry of Justice

Lack of judicial independence - ministers challenging the independence of the judiciary

• Ministers are increasingly willing to publicly criticise the courts and make comments about rulings

  • 2013 - May (Home Sec)

    • Accused judges of making the UK unsafe by ruling that deportation of foreign criminals damaged their right to a private life

  • Article 50 decisions led to a lot of backlash from ministers and the media

    • ‘Leftie lawyers’ - Johnson

    • ‘Enemies of the people’ - the Daily Mail'

  • 2020 immigration law firm suffered attack

    • “do-gooder… lefty lawyers” - Priti Patel

    • If judges ruled against the govt they were “wet liberals” and “soft on criminals” - ally of then-attorney general Braverman

Impact of independence of judiciary

• No highly significant public inquiries between 2003 and 2010

  • Govts have been reluctant to order them as independence of judiciary acts as deterrent