Gina Miller v Secretary of State for exiting the EU 2016 as an example of the importance of judicial independence

Law students are now required to take note of how the independence and work of the judiciary has been reformed

Law students are now required to take note of how the independence and work of the judiciary has been reformed by the Constitutional Reform Act 2005 and Crime and Courts Act 2013. The aim of the legislation was to answer criticisms to the effect that there was an overlap between the executive, the legislature and the executive in that the Lord Chancellor had too much influence in the selection of judges and was also able to sit as a judge in the Supreme Court. As a result of the Constitutional Reform Act 2005 and the Courts and Crimes Act 2013 the Lord Chancellor now has only a very limited role in the selection of judges and does not sit as a judge in the Supreme Court. The 2005 Act is said to have strengthened the independence of the judiciary.


The selection of Judges is now conducted by the Judicial Appointments Commission so is independent of government influence although the Lord Chancellor still exerts ‘some’ influence.


Prior to these reforms there was also an overlap between the the judges sitting in the then House of Lords (the Law Lords) and the legislature as they sat in the House of Lords in Parliament. Now newly appointed supreme court judges are not permitted to be members of the House of Lords as this would mean that they had a foot in the camp of the judiciary as well as being part of the legislature.


Section 3 of the Constitutional Reform Act 2005 specifically provides “The Lord Chancellor, other Ministers of the Crown and all with responsibility for matters relating to the judiciary or otherwise to the administration of justice must uphold the continued independence of the judiciary.”


Section 3 subsection (6) also states “The Lord Chancellor must have regard to—


a) the need to defend that independence;


b) the need for the judiciary to have the support necessary to enable them to exercise their functions;


c) the need for the public interest in regard to matters relating to the judiciary or otherwise to the administration of justice to be properly represented in decisions affecting those matters.”


Many legal writers have questioned whether Liz Truss, the current Lord Chancellor has done enough to demonstrate her support for the independence of the judiciary.


The three arms of state must be kept independent of each other under the theory of the separation of powers first put forward by Montesquieu. The theory is supposed to prevent too much power being exercised by any one arm of the state as each arm is subject to scrutiny by the other two arms of state. Judges are after all expected to carry out their role impartially and without fear or favour.


As well as the High court's decision in Miller as being held out as an example of why it is important that judges are able to arrive at decisions which are based upon the rule of law and may go against the government's wishes you may be expected to describe or discuss other examples of issues relating to judicial independence.  Such examples might include for instance the USA , Brazil or Russia where a selection process operates involving the president and one of the houses of the legislature. America's constitution allows the executive in the form of the president being able to put forward appointees of judges to their Supreme Court which as one might expect is their highest court. We perceive that it is the responsibility of the judiciary to protect citizens against unlawful acts of government and consequently the need for the judiciary to be independent of government and this is mentioned on the government's website dealing with the judiciary but the system in America seems to politicise the role of their Supreme Court.


Nominations by their elected President are given constitutional status in America's written constitution and such nominations are not without pitfalls in that the Senate can reject such nominations. Needless to say such a system seems completely alien to us as we have gone to some lengths to progress from the days when judges were commonly removed by a monarch if they did not like the decisions being handed down. This led to some security and a measure of independence from sovereign interference as long ago as the Act of Settlement of 1701.


There are other systems of appointment employed by some countries and this includes a legislature-centred approach where each house of the parliament is able to appoint an equal number of judges which has a reciprocal effect on the judiciary. Germany uses this approach.


Some countries cannot resist the temptation to blame their judiciary when decisions go against them and Zimbabwe and Dr Robert Mugabe's regime is often cited as an example of what not to do in terms of judicial interference. There are countless articles and accounts of interference with such entitlements to demonstrate and protest peaceably as well as wholesale land seizures from white farmers which started in 2000. Needless to say this highlights that judicial independence is not just about appointment but actually extends to the work of judges and how they may be held to account and disciplined.


In accounts by the Zimbabwe Independent the Law Society of Zimbabwe is said to have condemned Mugabe’s attempts to intimidate judges, saying his utterances “bode ill for the independence of the judiciary”.


Such threats from the head of the executive bode ill for the independence of the judiciary. It constitutes unacceptable intrusion by one arm of the state into the domain of another,” the Law Society said.



Useful links:


Courts and Tribunal Service


Politics UK


UK Constitutional Law Association


The Economist- Judicial independence Only in America


United States Institute of Peace Judicial Appointments and Judicial Independence 2009


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