Judicial Independence UK

The principle of judicial independence is one of the key parts of the constitution. Based on the separation of powers, it holds that there should be a strict separation between the judiciary and other branches of government. Judges can therefore apply the law as their own experience and legal training dictates, rather than as ministers, civil servants or parliamentarians would wish. As such, judicial independence is a vital guarantee of the rule of law. Law cannot act as a constraint on government if the executive and Parliament can influence judges in how they interpret and apply the law. How is judicial independence maintained? And how far is it upheld in practice?

· Terms of employment Judges cannot be removed from office unless they break the law. The only limit on their service is an official retirement age, which is 70 for those who have been first appointed to a judicial post since the end of March 1995. This is known as security of tenure. Judges are also immune from legal action arising from any comments they may make on cases in court.

Independent legal profession. Judges are appointed from the ranks of lawyers who belong to an autonomous legal profession. Standards within the profession are regulated by the Law Society, not by government. Lawyers and judges are therefore not trained by the state, as in some other European countries.

· Pay Judges' salaries are paid automatically from an independent budget known as the Consolidated fund, without the possibility of manipulation by ministers.

· Judges cannot be dismissed on the basis of their decisions (though they can be dismissed for misconduct such as bribery). This means the government cannot put pressure on judges, by threatening them with dismissal. This is often described as; security of tenure.

· The salaries of judges are protected and guaranteed. Again this prevents the government threatening a judge with loss of income if he or she will not cooperate,

·· All judges are appointed by an independent judicial Appointments Commission This means that there is little or no political interference in appointments. In this way judges do not owe any loyalty to politicians and can act independently.

· Senior judges are forbidden from engaging in active politics, so they have no party allegiances. Furthermore, as lifelong professional lawyers, they are used to putting aside their personal views when making judgements.

The fact that the Supreme Court is physically separate from Parliament is another, more visible sign of its independence. There was never any suggestion that the Law Lords were subject to government pressure, and indeed there were a number of cases where they demonstrated their independence. However, their transfer to new premises removed any possible doubt of this.

Freedom from criticism. There are constitutional conventions that forbid MPs and peers – and therefore also ministers – from putting pressure on judges by criticising court rulings and judicial decisions in Parliament (although, as will be seen later, these are often breached in practice).These conventions are meant to apply to ministers as well. The ‘sub judice’ rule forbids people, including politicians, from commenting on cases that are currently being considered.

Greater institutional autonomy. The judiciary has become a more independent and self-governing branch of government. As head of the judiciary, the Lord Chief Justice makes decisions which were previously made by the Lord Chancellor, and now, for instance, appoints all circuit and district judges and represents the views of the judiciary to Parliament, the government and the public.

How independent is the Supreme Court?

In most important respects the Supreme Court is independent of government. However, some concerns were raised in 2011 by its first President, Lord Phillips, on the subject of funding. This came in response to the spending cuts imposed on the court system as part of the coalition government's strategy to eliminate the budget deficit. Lord Phillips argued that the independence of the Court was at risk unless it could be allocated pre-set, ring-fenced funding. He spoke of a `tendency on the part of the Ministry of Justice to try to gain the Supreme Court as an outlying part of its empire'. The Justice Secretary at the time, Kenneth Clarke, dismissed this argument. He insisted that the Supreme Court was independent of political interference and that the government accepted its judgments, even those that went against it, and that the Supreme Court could not uniquely be permitted to set its own budget.

A second concern about judicial independence stems from a growing willingness of ministers publicly to criticise the courts. This has particularly applied in the case of successive home secretaries. Examples of this include:

• In 2003, David Blunkett condemned the release of the nine Afghan hijackers.

• In 2005, Charles Clarke criticised the release of terrorist suspects from Belmarsh Prison.

• In 2007, John Reid attacked the decision not to deport the murderer of the London headmaster, Philip Lawrence.

• In 2010,Theresa May criticised the refusal to deport two terrorist suspects to Pakistan, despite it having been acknowledged that they had links to al-Qaeda.

• In 2013, May accused judges of making the UK more dangerous by ignoring rules aimed at deporting more foreign criminals.

A further concern is that greater judicial activism in recent years suggests a determination on the part of judges to develop their own view of the ‘proper’ application of law. For example, Lord Neuberger, the President of the Supreme Court, attacked the then-home secretary Theresa May in 2013 for criticising judges over their failure to deport foreign criminals, saying that her views were ‘inappropriate, unhelpful and wrong’. However, this has drawn judges in to politics and opened them to public criticism.

See: Gina Miller Article 50 Case

But unlike in the USA

Parliament remains sovereign and so ultimately controls law

There is no entrenched constitution, so there are no clear limits to government power

There is an increasing tendency for government ministers to comment adversely on judicial decisions

Why an independent judiciary is important?

An independent judiciary is important for these reasons:

· The rights of groups and individuals can be protected from abuse from government or other organisations.

· It upholds the idea that the government should not be allowed to exceed its legal powers.

· The rule of law can be better protected by independent judges.

· it When there is a need to interpret the meaning and operation of the constitution, it ensures that the government is not able to manipulate the interpretation to suit itself.

· The judiciary should not be unduly influenced by any body or organisation in case it is required to dispense justice involving such a body.

· When there is a widespread public demand for a certain draconian action to be taken, for example discrimination against an ethnic minority, the violent suppression of dissident organisations or the torture of suspected terrorists, an independent judiciary can stand above public opinion and protect rights, equality and the Rule of Law.