Rule of Law and Judicial Independence

What is the Rule of Law?

The rule of law is a fundamental idea in law, meaning that everyone, regardless of their position or power, must follow and be accountable to the law. It helps protect against unfair use of power (like dictatorship) and ensures democracy. Essentially, it says that authority must be exercised fairly and within legal boundaries.

• Joseph Raz, a prominent academic, described the rule of law as a way to prevent arbitrary use of power. This means the government and other bodies can’t make decisions or impose laws without clear, justifiable reasons.

In simple terms, the rule of law ensures that:

• Everyone is subject to the law.

• Laws are applied fairly.

• No one, even those with power, is above the law.

Key Principles of the Rule of Law

Here are four main principles that are often discussed as part of the rule of law:

1. Equality Before the Law

2. Absence of Arbitrary Power (Limiting the Power of the State)

3. Accessible and Clear Legal Rules

4. Judicial Independence

1. Equality Before the Law

• This principle means that everyone must be treated the same under the law, regardless of their social status, wealth, or position.

  Example: In 2002, Princess Anne, the Queen’s daughter, was fined £500 after her dog bit two boys. This shows that even someone in a very high position is subject to the law.

  However, consider the case of Anne Sacoolas in 2019. She was the wife of a US diplomat who fled the UK to avoid charges after causing the death of Harry Dunn. This case raises questions about how diplomatic immunity can create exceptions for some people based on their status, challenging the idea of full equality before the law.

2. Absence of Arbitrary Power (Limiting the Power of the State)

• The state (government and judges) should not have the unlimited or unchecked power to make decisions. There must be a system in place to make sure that decisions are not arbitrary or unfair.

  Example: In the case of R (on the application of Miller) v the Prime Minister (2019), the Supreme Court ruled that Prime Minister Boris Johnson’s decision to prorogue Parliament was unlawful, as it used the Royal Prerogative in a way that exceeded the limits set by the law.

3. Accessible and Clear Legal Rules

• Laws need to be clear and accessible so that everyone can understand them and know what will happen if they break them. This ensures that citizens can make informed decisions about their actions.

  Example: The Offences Against the Person Act 1861 has very old-fashioned language, which makes it difficult for most people to understand what the law really means. This makes it harder for citizens to know in advance what legal consequences they may face.

4. Judicial Independence

• Judges must be independent from the government, politicians, and all parties involved in a case. They need to make decisions based solely on the law, without being influenced by external pressures.

  Example: In the Re Pinochet case (1998), General Pinochet, the former dictator of Chile, was arrested in the UK for crimes against humanity. One of the judges in the case, Lord Hoffman, was found to have a personal connection to a charity campaigning for Pinochet’s extradition. Because of this, the House of Lords ordered a re-hearing of the case, showing the importance of judicial impartiality.

Dicey’s View of the Rule of Law

A.V. Dicey was a famous scholar who argued that the rule of law has three main elements:

1. Absence of Arbitrary Power – The government should not be able to use its power without limits or in an unjust way.

2. Equality Before the Law – Everyone, no matter their position or power, should be subject to the law.

3. Supremacy of Ordinary Law – The law should apply to everyone in the same way, not based on royal or special privileges.

While Dicey’s view has been highly influential, some critics argue that it is hard to apply these ideas in practice, especially when Parliamentary Supremacy (the idea that Parliament is the ultimate authority) may conflict with Dicey’s principles.

What is Judicial Independence?

Judicial independence means that judges should not be influenced by outside forces, like politicians, the media, or public opinion. They need to be free to make decisions based on the law alone.

Key examples of judicial independence include:

• Security of Tenure – Judges cannot be removed from their positions unless there are serious reasons (like incapacity or misbehaviour).

• Judges are also immune from lawsuits while performing their judicial duties. This protects them from being sued or prosecuted for decisions they make in court.

Why Does Judicial Independence Matter?

1. Freedom to make fair decisions – Judges need to make decisions based on law, not political pressure or external influence.

2. Protection of liberty – Independent judges help protect individuals from unlawful government actions or unfair legal proceedings.

3. Public confidence – People trust the legal system more if they believe that judges make decisions impartially, without external interference.

Case Law and Judicial Independence

Re Pinochet (1998)

• General Pinochet, the former dictator of Chile, was arrested in the UK on charges of human rights abuses. One of the judges, Lord Hoffman, had a personal connection to a charity that campaigned for his extradition. Because of this, the case had to be re-heard with a new panel of judges to ensure that the decision was impartial.

Security of Tenure and Independence

• Superior judges (like those in the Supreme Court or High Court) have security of tenure, which means they can’t be dismissed by the government. They can only be removed by the monarch, and this has never happened.

• Inferior judges, such as those in lower courts, can be dismissed for reasons like misbehaviour or incapacity by the Lord Chancellor.

Immunity from Suit

Judges have immunity (protection) from being sued for actions they take in their official judicial capacity. This means that if a judge makes an error in a case, they cannot be sued or prosecuted for it.

Example: In Sirros v Moore (1975), a judge wrongly denied bail to a defendant. The defendant tried to sue the judge for false imprisonment, but the case was dismissed because judges have immunity from lawsuits while making decisions in their official role.

Separation of Powers

The separation of powers principle divides the powers of the state into three branches: the executive (government), the legislature (Parliament), and the judiciary (courts). This system helps ensure that no one branch becomes too powerful and that judges remain independent from the executive (government) and the legislature (Parliament).

Judicial independence is crucial for:

• Ensuring fair trials and equal treatment under the law.

• Protecting individual freedom against abuses of power by the government.

Judicial Review

Judicial review is a process by which judges review decisions made by government bodies or officials. This ensures that government actions are legal, fair, and in line with the law.

Example: Gina Miller brought two cases (2017 and 2019) to the Supreme Court challenging government decisions on Royal Prerogative powers. Judicial review helps ensure that the government doesn't overstep its legal authority.

In 2023, the Supreme Court also ruled on the case regarding the government’s plan to send asylum seekers to Rwanda. It was important that the judges in this case were independent of the government, as they needed to make a decision based on the law, not political pressure.

Why is Judicial Independence Important?

Judicial review is a process by which judges review decisions made by government bodies or officials. This ensures that government actions are legal, fair, and in line with the law.

Example: Gina Miller brought two cases (2017 and 2019) to the Supreme Court challenging government decisions on Royal Prerogative powers. Judicial review helps ensure that the government doesn't overstep its legal authority.

In 2023, the Supreme Court also ruled on the case regarding the government’s plan to send asylum seekers to Rwanda. It was important that the judges in this case were independent of the government, as they needed to make a decision based on the law, not political pressure.

Conclusion: Why is Judicial Independence Important?

Judicial independence is a key component of the rule of law. It ensures:

• Judges can make impartial decisions based on law, not politics.

• It protects citizens from abuse of power by the government.

• It supports the separation of powers, ensuring fairness and justice in legal decisions.

Without judicial independence, the rule of law would be compromised, and the government could act without checks or balances.