Independence and Impartiality of Judiciary

Central to the idea of the rule of law is that the judiciary should be independent and
impartial. Judicial independence means that judges should be free from outside
pressure, where as impartiality is concerned with decision making without bias.

Independence

The minimal requirements for ensuring judicial independence are:

a) Judges should have security at tenure and salary
b) Freedom from criticism in parliamentary debate
c) Immunity from civil and criminal liability as regards the discharge of
judicial functions and
d) Appointments should be made by an independent body so that judges do not
have to return favors.

The security of tenure of the superior judiciary was confirmed in the Act of Settlement
1700. This act laid the rule that judges of the superior courts hold office during good
behavior subject to a power of removal by the Queen on an address to the Queen by
both Houses of Parliament (This rule has been re-enacted in the Supreme Court Act
1981).

This procedure is designed to protect the superior judiciary by making it

difficult to remove the senior judiciary.

However, this protection has not been afforded to the judges of the inferior courts and
magistrates.
The judges should also hare security of salary. Judges salaries are charged on the
consolidated fund which means that the authority for payment is permanent and does
not have to be reviewed by Parliament each year. Judicial salaries can be increased but
not reduced.

By convention the judicial conduct of judges may not be the subject of criticism in
parliamentary debate (except upon a nation for an address for their removal). Breach of
this convention may amount to contempt of Parliament.

Judges are immune from suit in the law of defamation for anything said in court.
However in case of other torts the immunity depends upon the rank of the judge. Judges
of the superior courts enjoy immunity even for an act in excess of their jurisdiction
provided they have acted bonafide. However this immunity does not extend to judges
of inferior courts who have acted outside their jurisdiction.

Judicial independence of superior judiciary has been considerably enhanced by the

Constitutional Reform Act 2005. Previously, all senior judicial appointments were
made on the advice of the PM/LC but now the Independent Appointments Commission
has been entrusted the major role in the appointments of superior judiciary.

The role of the Independent Appointments Commission has greatly removed the
criticism that judicial independence requires freedom from political influence in the
appointment of judges. Judges will no longer feel obliged to return favors.

Impartiality

The fact that judges enjoy a great degree of independence from the executive does not
mean that they are impartial/neutral in their decision making. Impartiality/neutrality
means that judges should not be biased or prejudiced in their judging but should decide
cases before them in a fair manner.
According to Professor JAG Griffith, bias can occur at two levels:
1) Personal bias: - where the individual judges permit their own personal views
/ prejudices to influence the judgment. Here the English legal system has a
rule that no man may act as a judge in his own cause. This is sometimes
known by the phrase memo judex in causa sua.
2) Corporate bias: - corporate bias involves the assertion that judges a body
decide certain type of cases in a biased way. The accusation of corporate
bias is much more serious than personal bias. Impartiality requires that the
judiciary must stand and also appear to stand above the confused milee' in
which classes, partier and interests via with each other for control or
influence over the state.

Griffith claims that as a consequence of their shared educational experience, their

shared training and practical experience at the Bar and their shared social situation as
members of the Established, judges have developed a common outlook. He maintains
that they share homo generous values, attitudes and beliefs as to how the law should
operate and be administered. He further suggests that this shared outlook is inherently
conservative.
Griffith says that when judges have to determine questions of public benefit they favor
the status quo and resist challenges to established authority. The courts tend to decide
cases in a way as to buttress the position of the state.

Griffith argues that judges are more lenient towards member of the profession than the
working class. Trade unions, members of sexual minorities’ holders of unorthodox
view squatters, student protestors can all expect rough justice.

Griffith argues that judges have a natural bias towards the interests of property. They
are less concerned with enlargement of liberty but more with the preservation of
property rights.
Even after the enactment of the HR Act 1998 Griffith and other academics associated
with the left expressed reservations about the role of the judiciary in protecting
liberties.

However, Lord Devlin has given a response to Griffith’s allegations by stating that on
most matters of public interest judges tend to hold plurality of views. According to
Lord Devlin it was incorrect that judges were conservative for him, if at all there is
some conservation it was a product of age rather than class.

It is apparent from the statistics produced by the DCA that senior judges are still
appointed from the same limited, social and educational elite as they always have been.
This gives rise to suspicion, even if this may not be the reality that the decisions that
this elite make merely represent the values and interests of a limited and privileged
segment of society rather than the society as a whole.
Even if the accusations made by Professor Griffith are inaccurate it is necessary to
remove the possibility of those accusations.

However in recent years some decisions like A v Secretary of State for the Home
Department is showing that the judiciary may not be so biased as alleged.