June 2023 Zone A Question 2

Judicial independence means that judges must be free to exercise their powers without interference from litigants,
the state, the media or powerful individuals or companies.’ Discuss.

The independence of the judiciary is perceived to be a core element in upholding the rule of law and in a broader
concept of the UK’s uncodified constitution. Former Lord Chief Justice and President of the Supreme Court the Rt
Hon. The Lord Philips of Worth Matravers defines the concept of judicial independence as ‘the position of a judge
upon whom no outside influences are brought to bear, direct or indirect, in relation to the performance of his
judicial duties’. This essay aims to highlight the importance of judicial independence which is twofold: institutional
and personal independence. Institutional independence refers to how judges would not be influenced by the
executive or the legislative in decision making personal independence refers to when judges would not be
influenced by personal preferences and being unbiased. Therefore, they would make decisions courageously and
responsibly. It will then move onto the evolution of judicial independence highlighting the fact that it was only after
the English civil war and the changes made to the Parliament that the concept of judicial independence was
established. Further, a discussion regarding the questionable position of the Lord chancellor and whether this
position is a blatant violation of the separation of powers and so is hindering his duty expressed in the oath of
office in ‘defending’ the judiciary independence as pointed out in the cases of Miller. It then moves onto highlight
vital changes brought about through the Constitutions Reform Act such as reforming the position of Lord
Chancellor and appointed a new position of Lord Chief Justice and sections 3 (1) and 5 of the Act in upholding
judicial independence. Further, measures taken to protect judiciary independence such as security of tenure,
immunity from suit and reasonable salary are discussed. Next, opinions of judges and reforms that have been
considered with respect to judicial independence is provided. In relation to the uniquely British situation of an
uncodified constitution, the influence of judges cannot be overstated therefore, they should be allowed the
necessary freedom without any interference from the legislative, the executive, the media or from any other
powerful individuals or companies in order to uphold the rule of law and the rights of the individuals they are
sworn to protect.

According to the Guide to Judicial conduct 2019, judicial independence is considered to be a cornerstone in a
system of governance in a democratic system and is essential in safeguarding the freedom and rights of the citizens
with regard to the rule of law. It further states that the judiciary ‘whether viewed as an entity or by its individual
membership, is and must be seen to be independent of the legislative and executive arms of the government’.
Judicial independence is two-fold: institutional and personal independence. Personal independence refers to when
judges are not influenced by their personal preferences and are not unbiased which would result in allowing
decisions to be made courageously and responsibly and thus resulting in the legal accuracy in judgements and
promoting certainty in the law and asserting public confidence in judges. Institutional independence on the other
hand is the freedom judges enjoy when they are not influenced by the executive or the legislative arms of
government in making the decisions. This leads to the doctrine of separation of powers to be upheld resulting in
the rule of law to be upheld. Therefore, it could be stated that judicial independence is the right of the judiciary to
exercise their adjudicatory rights without any influence from the media or the state.

However, although judicial independence is a right of the judiciary, it was not until the 18th century that this right
was enforced. Before the 18th century, the monarch was allowed the freedom to oust judges who provided
judgements that did not align with those of the monarch. The Act of Settlement 1701 sought to change this
unfairness and under this act judges were given tenure for life and could not be dismissed unless on the grounds of
misbehavior. This provided the motivation for judges to pass judgements fairly and fearlessly without any influence
and interference from the executive, the legislative, the media or any other powerful individuals or companies.

Furthermore, with regard to judicial independence it is vital to discuss the position of the Lord Chancellor. The Lord
Chancellor’s position is commonly referred to as a connection between the judiciary and the executive as he is both
a judge and a member of the Cabinet having a ‘foot in both camps. Therefore, this position was seen as a counter
active and a clear blatant violation to the concept of separation of powers. However, this overlapping of roles was
deemed to be insignificant until the introduction of the Human Rights Act 1998 of which article 6 states the right to
fair trial and the position of Lord Chancellor abused this. Therefore, it could be said that the position of Lord
Chancellor hindered judicial independence as the judiciary was heavily influenced by the executive arm of
government in exercising their adjudicatory rights.

A case analogous to the situation of the Lord Chancellor is McGonnell v UK 2000, Bailiff’s direct involvement of the
legislation while being the executive resulted in the casting of doubt on his judicial impartiality when acting as the
sole judge in the case hearing. The European Court of Human Rights stated that the test of independence is
objective, and it was not a question of the actual impartiality of the court but whether the court can be seen to be
impartial. This concept of appearances and the situation of whether the court is impartial in an objective
perspective in a democratic society was introduced by the European Court of human Rights. As it was pointed out
that Bailiff was impartial then as this case is on par with that of the position of the Lord Chancellor, it should follow
suit. This would then lead to the clearing of the obstructed independence of the judiciary in freely exercising their
adjudicatory rights without the influence of the executive arm of the government.

In order to clear the shadow of doubt regarding the impartiality of the position of the Lord Chancellor a
revolutionary change was made through the introduction of the Constitution Reforms Act 2005. This act made
profound changes to the position of the Lord Chancellor and appointed a new position of Lord Chief Justice which
went onto cement the doctrine of separation of powers. Further to this the establishment of the Judicial
Appointments Commission has led to the reduction of the powers the Lord Chancellor in judicial appointments.
Thus, resulting in the upholding of the rule of law and the impartiality of judges which contributes to judges being
given the necessary background to exercise their adjudicatory rights free from legislative or executive arms of the
government. Further, sections 3 (1) and (5) of the Act codifies judicial independence. Section 3 requires all
ministers to ‘uphold the continued independence of the judiciary’ and includes the prevention of unwanted
government influence on judicial decisions and ensures that the judiciary is equipped with adequate resources to
perform their adjudicatory functions regarding the interests of the public. In the case of Miller 2017, the Lord
Chancellor was heavily criticized for what was considered as a slow and inadequate response to the widespread
media criticism aimed at the judiciary. The Lord Chancellor after a few days of silence made a dry statement that
the ‘independence of the judiciary is the foundation upon which our rule of law is built’. This case proves how
influential the media is in influencing the exercise of adjudicatory rights of judges.

Moreover, there have been several measures placed to protect judicial independence such as security of tenure.
This allows judges the freedom to make decisions even if these decisions are not held to be popular as they
understand that there are very few grounds for dismissal. Immunity from suits is another measure placed to
protect judicial independence, this guarantee is vital as judges are able to provide fair and well decided judgements
as they are free of the consequences that would come when making certain decisions. A reasonably generous pay
results in the discouragement of being enticed by bribes or other offerings from powerful individuals and
companies for example and would provide fair and just decisions. All these factors result in judges being fearless in
their decision making and as a result the judiciary is envisioned to be free from these shackles that would
otherwise hold them back from exercising their adjudicatory rights.

Going on, with regard to the personal aspect of judicial independence, it is of vital importance that judges are seen
to be both independent and impartial as justice must not only be done but also must be seen to be done.
Therefore, if judges are found to be impartial, they should be disqualified, in fact even an appearance of
impartiality acts as sufficient grounds for dismissal resulting in the confidence of the public being upheld. When
deciding whether it is right for a judge to hear a case, the judge needs to understand whether a reasonable doubt
would be cast on the minds of the people and if so then a duty is placed on them to recuse themselves. This was
the reason for the House of lords in the case of Pinochet to hold that it would set aside a decision given and would
be heard again by a panel of different Law Lords when it was brought into light that after the original decision one
of the Law Lords might have appeared to be not independent and impartial with regard to an organization involved
in the case. This case highlights the importance of impartiality and appearance of impartiality of judges as this goes
onto uphold the public confidence. Before the HRA 1998 there were situations of apparent bias where the judges
must recuse themselves if there is a real danger or even possibility of bias and it is up to the reviewing court to
make this assessment and see if there is a real risk. If there is a risk the judge will be asked to recuse themselves.
But if the judge is shown to have an interest in the case he will be automatically disqualified, this was seen in the
case of Locabail. In the case of Director General of Fair-Trading v Proprietary Association of Great Britain, the CA
modified the test for potential bias and held that the appropriate test is whether a fair-minded observer would
conclude whether there was a real possibility of bias, and this was later approved by HOL in case of Porter v Magill.
The above factors are vital in determining the exercise of the adjudicatory rights of the judiciary without influence
from the executive, legislative, the media, powerful individuals or companies thereby allowing the rights of citizens
and the rule of law to be upheld.

The future of judicial independence is questionable according to The Guardian which citing a 2020 survey states
that 94% of judges were ‘’concerned’ or ‘’extremely concerned’ with the government’s behavior towards the
judiciary. Some of the decisions in 2020, the APPGDC stated that the supreme court had made ‘’reversals’’ of
previous decisions regarding the government and that the court ‘’appears to adopt similar language to that used in
the [government’s] political talking points’’. It further goes onto point out reforms such as statutory guidance for
ministers regarding their constitutional duties in upholding the independence of the judiciary and appointment of
law ministers should be enforced to provide the necessary background for judges to freely exercise their
adjudicatory rights to uphold the rule of law and citizens rights.

In conclusion it could be submitted that the above factors lead to judicial independence being upheld which in turn
upholds the

The absence of judicial independence will result in decisions being biased and unfair, to resolve this
situation and ensure judicial independence, measures such as security of tenure, immunity from suit and
reasonable pay are established. It is only when this independence of the judiciary from external
influences such as the executive, the legislative, the media and powerful individuals and companies is
established, the rule of law which is perceived as a cornerstone of democracy is upheld and the public
confidence is promoted, it also plays a vital role in the uniquely British situation of an uncodified
constitution.