13 May 2021

Judicial independence

By Miranda Marshall, Director, Hayes + Storr.

It is vital in any democracy that judges are impartial, independent, and non-political. This ensures that the public, especially those who come before them, can be confident that legal cases will be decided fairly and in accordance with the law.

Judges must be free from all pressure from government or the legal system. This includes individual litigants, pressure groups, the media, self-interest, and other judges. They must have no political affiliations.

This independence is so important as it is vital that a judge decides a case solely on the basis of the evidence put to them in court and in accordance with the law. Only relevant facts and law should form the basis of a judge’s decision. This is the only way judges can carry out their duty to provide fair and impartial justice ‘between citizen and citizen, or between citizen and the state’.

Government has grown, both in size and reach over the last century, and so the need to protect citizens against unlawful acts of government has grown too. This means that the responsibilities of judges have also increased.

Not only must justice be done but, just as importantly, it must be seen to be done. Therefore, it is even more critical that judges are seen to be independent. Any suggestion that a decision might not have been made impartially requires it to be heard again by another judge.

But, whilst an independent and impartial judiciary is a fundamental of democracy, the practicalities of this are often treated with suspicion. Judges have immunity from prosecution when carrying out their judicial role. They are also immune from being sued for defamation for things they say in court.

With any high-profile case comes intense media scrutiny of the judge. Such cases are as wide-ranging as a shocking murder trial, celebrity divorces, and challenges to the legality of government policy. There are complex and technical factors to be taken into account in any such case, the fine details of which are often lost to the media and many members of the public.

In the English Middle Ages, the King and his council held judicial power. During the 15th century these powers reduced. The 17th century Stuart dynasty used their powers to overthrow parliament. After the Stuarts were removed in the 1688 Glorious Revolution there was a move to guard against the royal manipulation of the judiciary. This led to William of Orange approving the Act of Settlement of 1701. This established the tenure for judges ‘during good behaviour’ unless parliament removed them.

So, the principle of judicial independence goes back to the early 18th century. The concept then spread abroad, where it was the model for the US constitution. It was also adopted in Australia, Canada, India, and other common law countries. Refinements and developments have come back to England through the European Court of Human Rights. The Constitutional Reform Act of 2005 has further separated the judiciary and legislature. It created the position of the Lord Chief Justice and removed much of the judicial status of the Lord Chancellor.

Judges do not express any political opinion, often even with family and friends. They eschew all social media. This can lead to them appearing to be out of touch with the country that they serve. The story of the 1960s judge asking, ‘who are the Beatles?’ is, apparently, a myth; but a good one.

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.