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Judicial independence

The United Kingdom is one of only a few countries not to have a written constitution (Israel and New Zealand are among the others). However, our laws and traditions provide a very definite framework of rights, rules and responsibilities.

For centuries, the independence of judges has been protected in several ways:

• Judges are independent of the executive and the legislature - and vice versa - and do not get involved in political debate;
• Apart from modern rules relating to age and health, judges of the High Court and above cannot be removed from office without an address passed by both houses of parliament; and
• Judges are almost entirely immune from the risk of being sued or prosecuted for what they do in their capacity as a judge.

But the absence of specific written rules does still leave a number of grey areas.

For example, our most senior judges do sit in the House of Lords, which is part of the legislature and executive. And, before April 3, 2006, the head of the judiciary was the Lord Chancellor – a government appointment and political post.

Historical background

This combination of government and judiciary isn’t a modern innovation; the very first judges, back in the 12th century, were court officials who had particular experience in advising the King on the settlement of disputes. From that group evolved the justices in eyre, who possessed a mixed administrative and judicial jurisdiction.

The justices in eyre were not, to put it mildly, popular. In fact, they came to be regarded as instruments of oppression.

In 1178, Henry II first chose five members of his personal household – two clergy and three lay - "to hear all the complaints of the realm and to do right”.

This, supervised by the King and “wise men” of the realm, was the origin of the Court of Common Pleas.

Eventually, a new permanent court, the Court of the King’s Bench, evolved, and judicial proceedings before the King came to be seen as separate from proceedings before the King’s Council.

Changes evolved slowly; even in the middle of the 14th century, under Edward III, there could be close collaboration between the Court of King’s Bench and the King’s Council. A third common law court of justice, the Court of Exchequer, eventually emerged as the financial business of the Royal Household was split off to a specialist group of officials.

The first judges

The first judges - that small group of royal clerks – were technically clergy, something seen as normal in an era when the Church was rich and the King less so.

This was an era when bribes and payments were common, but even so, in the middle of the 13th century the judiciary was openly accused of corruption.

In 1346, judges were obliged to swear that "they would in no way accept gift or reward from any party in litigation before them or give advice to any man, great or small, in any action to which the King was a party himself".

Judicial salaries were also increased, possibly to make them less dependent on other forms of income.

This didn’t always help: in 1350 the Chief Justice of the King’s Bench, William de Thorpe, was sentenced to death for bribery (he was later pardoned, but demoted).

Problems with politics

The 14th  century saw members of the judiciary still involved in politics to some extent – for example, for ten years, Edward III’s Chancellors were common-law judges.

In 1387, six judges advised Richard II that a parliamentary commission set up to limit his own powers was ‘invalid and traitorous’. They were all impeached, convicted and sentenced to death, although only one was actually executed; the rest were banished to Ireland.

Unsurprisingly, for two centuries after this the judiciary kept almost entirely away from politics. And although judges could be removed at the sovereign’s pleasure, only Mary I ever did so.

Starting to separate: early signs

The Tudor period also saw the separation of judges from the Privy Council - except for the Chief Justice under Edward VI and Mary, no judge was a member of that body between 1540 and 1599.

Although it was generally accepted at this time that even the King was subject to the laws of the land, the Reformation added to the sovereign’s powers; the state had taken over the Church's privilege to define the laws of God, and had removed the influence of the Pope as the ultimate arbiter on Earth.

So the King remained principal law-maker, with the judges as interpreters of that law; a potentially uneasy relationship.

 

A risky business

On the face of it, the judiciary was becoming steadily more independent: in 1642, Charles I was forced to agree to the appointment of judges "during good behaviour", and their salaries were raised from under £200 to £1,000 a year in 1645.

On the restoration of the monarchy in 1660, all judges – and there were just 12 at this point, four in each of the common law courts - remained in office.

But in 1668 the system of appointments "during pleasure" was reintroduced, and in the last 11 years of his reign Charles II sacked 11 of his judges. The next king, Charles’s brother James II, sacked 12 in just three years.

This was bound to affect the quality of the judiciary: judges knew very well their jobs were at risk if the sovereign did not like their judgments.

A new independence…

The day after the House of Commons resolved that James II had abdicated, a parliamentary committee drew up Heads of Grievances to be presented to the new King, William III.

This document contained, among other things, items on paying judges’ salaries out of public funds, and preventing judges being removed or suspended from office, “unless by due cause of law”. These grievances eventually appeared in much the same form in the Act of Settlement (1701) and have remained in place ever since.

…But still not separate

The judiciary might have become independent – but that doesn’t mean they were entirely separated from government. Chief Justice Lord Mansfield was in the Cabinet between 1757 and 1765, for example and more recently Lord Cave was Home Secretary for a couple of months at the end of the First World War when he was also a serving Lord of Appeal in Ordinary, or Law Lord.

Serving judges still sit in the House of Lords, although it is accepted that they do not take part in party political debates. The Lord Chancellor, right up until April 3, 2006, was part of the executive, the legislature and the judiciary.

The Constitutional Reform Act 2005

The Lord Chancellor’s role changed drastically on April 3, 2006 as a result of the Constitutional Reform Act 2005.

For the first time in almost 900 years, judicial independence is going to be officially enshrined in law.

This piece is based on an essay, Judicial Independence — Its History in England and Wales by the Right Honourable Lord Justice Brooke, Court of Appeal. The piece was published in 1997 in Fragile Bastion: Judicial Independence in the Nineties and Beyond by the Judicial Commission of New South Wales.

Judicial accountability

The constitutional changes reflected in the Constitutional Reform Act 2005, in particular the displacement of the Lord Chancellor as the Head of the Judiciary and the creation of a Supreme Court, led to new interest in the judiciary as an institution and in the issue of the accountability of judges and the judiciary. The forms of accountability and their limits are discussed in this paper. It reflects the views of the Judicial Executive Board which were first formulated in January 2007, further considered in May and confirmed at a joint meeting of the Judicial Executive Board and the Judges' Council.

• Judicial accountability paper (HTML version)
• Judicial accountability paper (PDF version 159kb)
• Guidance for Judges appearing before or providing written evidence to Parliamentary Committees (PDF 133kb)

On 26 July 2007 the House of Lords’ Select Committee on the Constitution published a report Relations between the executive, the judiciary and Parliament.  The judiciary’s response was sent to the Committee on 18 October 2007.

• Relations between the executive, the judiciary and Parliament (HL Paper 151)
• Response from the Judiciary (PDF version 159kb)

©2008 Judicial Communications Office