Neutrality of the SC/judiciary

Maintenance of judicial neutrality - judge’s personal neutrality and accountability

• Judicial oath makes judges swear to the principle of impartiality

• Judges expected to refrain from activities that may create impression of bias/conflict of interest

  • Judges must stick to legal topics and not engage in political debate/controversy

• SC livestreamed so accessible to all

  • Judges are accountable to those watching (theoretically the whole public) and have to explain their rulings

• Article 50 case - showed that judges looking at legal questions about balance of legislative/executive power, not leaving the EU itself

Maintenance of judicial neutrality - diversity of judiciary, Judicial Appointments Commission

• Lady Hale, president of SC 2017-20, only female or state educated Law Lord in 2004

• 2020- 2 other female judges and 2 other state educated judges

• Judicial Appointments Commission

  • Proportion of women recommended for High Court

    • Pre-JAC - 13%

    • 2017-8 - 29%

  • Proportion of BME candidates recommended for High Court

    • Pre-JAC - 2%

    • 2017-8 - 6%

Maintenance of judicial neutrality - extensive legal training, rules about court proceedings

• Senior judges usually have 20-30 years of experience as barristers or junior judges and have become well-versed in focusing entirely on legal considerations

• Court required to be conducted fairly and judgements are meant to be based on evidence

Failure of judicial neutrality - role of the media

• Media has often attacked judges for their decisions (some say this is fair game), especially in the Article 50 case

  • Daily Mail called the judges ‘enemies of the people’

• President Neuberger (at the time of the Article 50 case) criticised the media for undermining the rule of law and reputation of the legal system

  • Criticised the govt for not defending the judiciary quicker and clearer

Failure of judicial neutrality - bias due to lack of diversity

• Most judges are white, upper M/C, Oxbridge and public-school educated men

• Brings forth the argument that the SC is naturally pro-establishment

• Left-wing attacks on judicial neutrality:

  • Bias against minority groups due to lack of social representation within the SC (2 women, no EM, majority Oxbridge educated)

• Right-wing attacks on judicial neutrality:

  • Judiciary has inbuilt liberal attitudes- favours individual rights over public interest, supposedly anti-Brexit