Relations Between Branches- Judicial Neutrality And Independence Flashcards
Judicial neutrality
The principle that judges should not be influenced by their personal opinions and that they should remain outside of party politics.
Security of tenure
Judges are effectively appointed for life or until a fixed retirement age, subject to proper behaviour. They cannot be removed for a decision that the government dislikes.
Judicial independence
The principle that the judiciary should be free of political interference and criticism, particularty from the executive.
The neutrality of the whole judiciary (judicial neutrality), including the Supreme Court, is a key principle. It implies the following:
+ Judges should show no political bias.
+ Judges should not show any bias in favour of, or against, any section of
society.
+ Judges should base their judgments purely on the principles of law and justice and not on the basis of their own prejudices.
+ As judges have security of tenure, they cannot be dismissed on the basis of their judgments.
Judicial independence is a key principle of a democracy. It is important for a number of reasons:
+ Judges need to be able to enforce the rule of law (equality under the law) without any external pressure.
+ Judges hear cases of political importance involving the government itself, so they must not be subject to pressure from government if they are to give a neutral judgment.
+ Judges must be able to protect the rights of citizens without fear of
retribution if they defy government wishes.
+ The judiciary is, in some cases, a key check on executive power.
Judicial independence is upheld in a number of ways:
+ Judges are appointed for life, so they cannot be dismissed if the government disagrees with their judgments.
+ Judges cannot have their incomes threatened if they make decisions
against government wishes.
+ Judges are appointed by a commission which is independent of
government.
+ It is the duty of government to protect judges from external pressure, for
example from media criticism.
Arguments FOR
The judiciary is independent and natural
-Judges are all experienced courtroom lawyers who are used to serving the law and the rule of law in a neutral fashion, rather than in a biased way.
-Since the Constitutional Reform Act (2005), an independent Judicial Appointments Commission (JAC) recommends candidates for judicial appointments on a more transparent basis, free from political interference.
-The creation of the UK Supreme Court resulted in the physical separation between the legislature and the judiciary, since the court resides in a separate building.
-The so-called sub judice rule in both houses of Parliament prevents MPs and peers from discussing a current or impending court case.
-Judges have openly criticised government decisions. In 2014 the lord chief justice of England and Wales condemned an attempt by government to hold a completely secret trial under the 2013 Justice and Security Act.
-The decisions relating to Brexit show a willingness to take on the government, demonstrating independence. The 2019 prorogation case denied the prime minister the right to prorogue (suspend) Parliament for a lengthy amount of time without a vote.
LIMITS to judicial independence and natural
-The lack of social diversity in the senior judiciary has led to charges that the courts are unconsciously biased against certain groups, particularly those groups who often feel most let down by the criminal justice system
- women and those from black, Asian and minority ethnic (BAME) communities.
-There is still some political input into senior appointments, despite the creation of the JAC. Formal selection responsibility continues to reside with the lord chancellor, who is appointed by the prime minister, and who may reject the first-choice candidate suggested by the JAC.
-It is argued that the creation of the Supreme Court was only a ‘cosmetic’ exercise. Indeed, the Supreme Court’s powers are largely only the same as those of the Law Lords, making it still limited in its ability to hold the government to account, a key tenet of judicial independence.
-MPs and the media openly question Supreme Court decisions. The Daily Mail ran a headline claiming the Supreme Court judges were ‘enemies of the people’ over the court decisions relating to Brexit. Some claim this kind of exposure could prevent the court from taking tough decisions in the future, limiting its independence.
-In criticising the government, judges may well be acting independently but in doing so are not necessarily acting neutrally.
-Parliament can limit the power and thus the independence of the judiciary. The 2019 Conservative manifesto promised to ‘review’ the powers of the Supreme Court, which was arguably included as a direct response to the court’s rulings pertaining to Brexit.
