The Judiciary plays a vital part in British Politics. The Judiciary should be apolitical and any judgements made, for example on government legislation, have to be made without any form of political bias. However, various aspects with regards to the Judiciary have been questioned recently: judicialindependence; judicial neutrality and judicial supremacy.
As government has got larger in all areas of society, there are some who claim that not enough is being done to protect those in society who might feel that their rights are being infringed and trespassed on by the government. What parts do the courts play in this?
The main area of contention is whether the judiciary is independent from government influence so that it does protect the rights of the ‘small’ people in society. If it not independent from government influence, is this an example of the extension of executive power into all aspects of life that some have spoken about? If the judiciary is not independent, what is there to protect people in society?
Judicial independence is seen as being the most important part of the British legal system. So what is judicial independence?
The executive is not allowed to delay the course of ‘common justice’. This is a ruling that goes back over 100 years. The executive is also not allowed to force judges into acting in a manner that is anything other than impartial.
In 1701 in the Act of Settlement, judges in superior (higher) courts were given the right to remain judges as long as they exemplified “good behaviour". Judges could only be removed from office if they were guilty of “bad conduct".
For the vast number of judges, this does not happen and this gives them security of tenure within the job – the argument being that such security assists their independence from government pressure in that they can only be removed for very specific grievances (which do not include unusual sentences for criminals) which do not include failing to support the government and its policies.
Judges should not be seen as civil servants. The Crown on the advice of the Prime Minister and/or the Lord Chancellor appoints them. Traditionally, judges have been barristers before being appointed. However, solicitors can now be judges in the Crown Court. There is no one Whitehall office that looks after the affairs of judges – which is why they cannot be seen as being civil servants. It is also this that supports the view that the judiciary is independent of the government. Independent professional bodies (who members are appointed by those in the profession) scrutinise the work of both barristers and solicitors – the argument being that those appointed to the bench are of the highest calibre and are at the top of their professional tree.
There are counter-arguments to this view.
All important judicial officers are held by government nominees. Currently, these would be the Lord Chancellor, the Attorney General and the Solicitor General. The Lord Chancellor sits in on Cabinet meetings and by the very nature of this, some see his position as being politicised. The controversy hit the headlines in the Blair government because of the appointment of Derry Irving as Lord Chancellor. Irving had a long-standing professional friendship with Blair and many queried whether his appointment was too dependent on this friendship. For all the while Irving held the post of Lord Chancellor, questions were raised as to just how independent he was of government influence.
Harriet Harman is the current Solicitor General – a former Health Minister in Blair’s first cabinet. Her resignation as Health Minister, amidst claims that she had singularly failed to modernise the NHS, could have led her to a political graveyard. Now back in the cabinet, she has had a political renaissance but, again, against claims that she is far from being politically independent. if she lacks political independence, the argument goes that she can not be judicially independent.
Lord Donaldson was Master of the Rolls – a very senior judicial position with both great importance and influence. However, in the early 1970’s, Donaldson presided over the Conservative’s Industrial Relations Court. These courts were seen as being anti-trade unions and pro-factory management. When Donaldson was Master of the Rolls, could he be neutral and impartial when it came to issues relating to worker/management rights with such a background? Some said it was perfectly possible – others doubted it.
For many years, the government appointed Lord Chancellor has had the right of veto with regards to newly nominated judges. Now that the role of Lord Chancellor is in a state of flux, the new ‘version’ may not have this right as such action could be seen as being politically motivated. Lord Chancellors have also had the right to comment on a judge’s performance and persuade that judge to resign from his position if the Lord Chancellor deems that his/her performance is unacceptable.
What exactly is judicial neutrality? Though the judiciary is not entirely independent of Parliament and the government, it is still expected to be neutral when making legal decisions/rulings. Even if judges do have a political preference, their final rulings are meant to be free of such influences. Traditionally, senior law figures were seen to be conservative and naturally politically favourable to the Conservative Party. In this sense, it was a commonly held belief that senior legal figures in the UK were pro-Conservatives and anti-Labour, when Britain had a Labour government. If this was true, then judicial neutrality could not have existed. This was seemingly proved when the judiciary did nothing to challenge the anti-trade union legislation of Margaret Thatcher.
“The judges are the keepers of the law and the qualities they need for that task are not those of the creative law-maker. Enthusiasm is not and cannot be a judicial virtue. It means taking sides and if a judge takes sides, he loses the appearance of impartiality and quite possibly impartiality itself." Lord Devlin, former Law Lord.
There are those who argue that it is all but impossible to be neutral at any level let alone political. Therefore, it would be unacceptable for society to view judges as having to be entirely neutral as it is simply natural for them to take sides over issues – they would not be human otherwise.
Points that have been forwarded to question the neutrality of the legal system are:
- Senior legal positions in Britain are political appointments. How much influence do these people have in the judiciary as a whole? If they have influence, can they, as political appointments, ever be neutral when rulings are made?
- As the Attorney General and Solicitor General (two of the very highest judicial figures in the country) sit in on cabinet meetings, can they both be neutral?
- The Attorney General supervises the work of the DPP (Director of Public Prosecutions). Can this advice always be neutral?
- Many judges, especially at the senior level, are from a specific background. Many are male, white, ex-public school, ex-Oxbridge etc. Many are also over the age of 40. Is it possible that they can have an open-mind over issues with such a background? For some, it is a short step from this judgement to linking judges with political beliefs that are to the right of centre. Some believe that their background may have engrained into judges a way of thinking that reflects this background.
It would be easy to view the senior law lords as being supreme in British politics. This would not be so, however. Any legal ruling by a judge, judges, law lords etc. can be overturned by an Act of Parliament. This means that, despite a probable time delay, the power of a democratically elected body can exercise its authority over the judiciary. Also, any ruling by judges is only effective if it is accepted by both the government and the people. At present, this is done as a convention – judges have no way of enforcing this. What if the government actively ignored a judicial ruling as it did not agree with it? What would judges do then?
Also judges themselves ruled that UK law is subservient to EU law as a result of the Factortame ruling in theHouse of Lords. In this instance, the judicial authorities in the UK ruled that their position at a full legal level was inferior to that of the law decided within the European Union.