judicial independence/ neutrality

judicial independence

• judiciary should be free from political control so they can apply justice properly w/o fear or consequences

judicial neutrality

• judges operate impartially, essential under rule of law

how are neutrality and independence linked?

• the absence of judicial independence will threaten neutrality because if judges are being directly controlled they won’t be able to be impartial

• but, independence doesn’t guarantee neutrality - judges may allow their personal views to influence their administering of justice

HOW IS JUDICIAL INDEPENDENCE MAINTAINED

security of tenure

• judges are appointed for an open ended term

• only requirement is that they must retire at 75. can’t get fired

• politician cannot influence judges by threatening to sack or suspend them

• members of senior judiciary can only be removed as a result of impeachment proceedings requiring a vote in both house of parliament

guaranteed salaries

• judges’ salaries are classified as ‘standing services’ and are therefore paid automatically from the Consolidated Fund

• produces independence as politicians are unable to manipulate judges’ salaries as a method of control

contempt of court

• media, ministers and other individuals are prevented from speaking out publicly during legal proceedings. you can’t report about a case that’s mid trial

  • ensures justice is fairly delivered w/o pressure being brought by politicians or the public as this can affect impartiality of judges/jury

separation of powers

• the most senior judges (law lords) used to sit in the HoL and the lord chancellor held significant roles in all three branches of government

• now more independent as senior judiciary no longer have as much influence in the other branches and aren’t making decisions within them

JAC (judicial appointment committee)

• JAC created after Constitutional Reform Act 2005

• brings greater transparency to the process of judicial appointments and served to address concerns that the system in place previously had been open to political bias

• avoids nepotism and simony, also avoids executive influence on judiciary

experience

• most senior judges have served as barristers for a long time and come to the bench having achieved a certain status

• such individuals arguably take pride in their legal standing and are therefore unlikely to defer to politicians or public opinion

threats to judicial independence

• media / public opinion

  • Sensationalist or biased reporting can lead to public hostility toward judges especially when they make decisions that are unpopular.

    • Judges may feel indirect pressure to align with public sentiment or avoid rulings that could attract media backlash.

    • seen with Gina Miller 2019 - When the Supreme Court ruled Boris Johnson’s prorogation of Parliament unlawful, some newspapers branded judges “Enemies of the People.”

• PM having influence of JAC appointments

  • The Prime Minister recommends appointments to the Supreme Court based on advice from selection panels. may affect who gets shortlisted.

  • If senior judges are perceived as being chosen for political alignment, it undermines the credibility of the judiciary.

• PM retaining control through justice ministry

  • PM appoints Lord Chancellor, who heads the Ministry of Justice (MoJ). gives the executive significant control over how the judiciary operates day-to-day.

    • Budgeting decisions (e.g., court funding, legal aid).

    • Influencing policy on judicial review and human rights.

    • Shaping reform bills that affect judicial scope.

  • Even if courts technically remain independent, the government's control over court infrastructure and legal frameworks creates indirect pressure.

HOW IS JUDICIAL NEUTRALITY PROMOTED?

anonymity

• judges have traditionally operated away from the public eye. until recently judges barely spoke out about issues of law or public policy

• encourages neutrality as judges wouldn’t be worried about facing direct scrutiny for their rulings

restriction of political activity

• judges not supposed to campaign on the behalf of a political party or pressure group

• although judges have the right to vote, their political views shouldn’t be on public record

• avoids political influence/bias, more neutral

legal justification of judgements

• senior judges expected to offer an explanation of how their decisions are rooted in law

• makes it less likely that senior judges will be guided by personal bias as they are forced to stick to the law wholly

high level training

• senior judges have commonly served for many years as barristers

• their status would normally reflect a belief that they can put aside personal bias when administrating justice

are judges becoming more active?

YES

• measures such as the HRA have drawn senior judges into the political arena by requiring them to rule on the merits of individual pieces of stature law as opposed to their application

• politicians have broken w/ convention by publicly criticising judicial rulings

• the Factortame case (1990) showed that UK courts are able to suspend acts of parliament where they are found to contradict EU law. given courts more confidence to challenge gov

• transforming law lords into justices of the supreme court (CRA 2005) has brought the judges into the public arena. more open to greater scrutiny by the media/public

are judges becoming more active?

NO

• the process by which senior judges are appointed in the UK has been made more transparent and less open to accusations of political interference

• judges can only review legislation passed by parliament and cannot form its own

• judges apply law passed by parliament and therefore the remedy lies within parliament