The Prime Minister, Rishi Sunak, recently pledged to recruit and train 150 new judges to help streamline asylum appeals. This pledge was met with intense scrutiny from Lady Chief Justice Dame Sue Carr, highlighting that the deployment of judges should be “exclusively a matter for the judiciary”.
This is the second time in a matter of weeks that Carr has challenged the Government on their political promises, having also been outspoken about their assurance to grant blanket exonerations to all those convicted in the Post Office IT scandal. Likely threatened by the government’s narrative that courts could not deal with the Post Office caseload, she stated it was “simply not factually correct”. Whilst, the mass exoneration of those who are innocent seems moral, political interference with the judiciary system could be the start of a slippery slope.
As retired judge Isobel Plumstead said, “It will inevitably lead to pressure for action in respect of other findings in criminal cases where a sort of moral right to exoneration is urged.” There will inevitably be future cases where there has been a severe moral miscarriage of justice, and victims will seek parliamentary intervention citing the Post Office scandal as precedent. Once the precedent has been set, an emboldened parliament may feel there can be other ‘exceptional circumstances’ requiring their intervention.
The doctrine of the separation of powers requires that principal institutions of the state-executive, legislature and judiciary remain divided and independent. Early-modern political thinkers, such as Montesquieu, outlined that the separation of powers prevents tyranny and protects liberty. If the politicians of the executive and legislature were to politicise and interfere with the judiciary, it could bring into question the impartiality and independence of the judiciary. Montesquieu threatened, “there is no liberty if the powers of judging is not separated from the legislative and executive.”
Examples of the perils of allowing the judiciary and executive to become more integrated can be illustrated by the challenges which have arisen with the US Supreme Court. The US system of selection relies on popular election, as Supreme Court judges run an election-style campaign to compete for a Presidential nomination. The nominee appears before the Senate which conducts a public hearing ahead of a vote on their confirmation. By contrast, UK Supreme Court candidates produce written applications and are interviewed by a select committee that judge candidates based on merit against job criteria. Minimalising the influence of the Lord Chancellor in the process insulates the court from political pressure, compared to the US, where an influential presidential role in the process exposes the court to judges who have political affiliations. For instance, as President, Donald Trump appointed three judges to the Supreme Court, shifting the balance to a Republican-dominated and overly-politicised judiciary. The consequences of the less formal separation of powers is evidenced in comparing the UK’s 59% confidence rating with the US’s 25% confidence rating for their Supreme Court. Lessening the separation of powers in the UK could perhaps invoke a similar decline in trust as the public no longer perceives judges as impartial.
In the UK, the Constitutional Reform Act of 2005 introduced a clearer separation of powers. Responsible for the formation of the Supreme Court, its clarifications of the separation of powers were consigned to the back pages of Britain’s constitution under the dominant EU law. Following Brexit, the Act has been thrust back into the limelight, as the Conservatives have fought to diminish the power of the judiciary and reinterpret the limitation of their power as the executive. The Judicial Institute at UCL found that in 2020, 94% of the judiciary was concerned and 78% extremely concerned about the loss of respect the Government had for the judiciary. Infamously, after four protestors were acquitted of criminal damage in 2022 following the toppling of the Edward Colton statue in Bristol, then Attorney General, Suella Braverman, referred the case for appeal.
Fundamentally, the Government has quickly grown from a critic to an overt encroacher of judicial independence. A 2022 report by the All Party Parliamentary Group on Democracy and the Constitution (APPG) found seven instances where the Supreme Court had departed from its previous verdict and taken a position more palatable to the executive. Whilst this was only raised as a point of concern, the report did conclude that ministers had failed to act constitutionally in attacking judges.
The APPG’s solutions to the interference of MPs suggest that statutory guidance should be provided to ministers on their constitutional duties towards the judiciary. A more thorough system which has greater influence in Parliament to prevent MPs from making unchecked comments about the judiciary. A moderate response requires a re-evaluation of the role of ministers who have disconnected themselves from their legal pasts and have proven unwilling to challenge the executive on the constraints of their power.
To mitigate against government’s encroachment into judicial affairs, the executive ought to work in collaboration with an independent body to ensure that roles do not become fused. Indeed, the creation of an impartial middleman to regulate commentary from both would be a positive step. This builds on the guidance offered by the APPG’s report, but an apolitical body without bias would prevent unnecessary abrasive interactions. Ministers can be critical but should be reminded that they cannot enforce how the judiciary conducts its business.
Felix Billar is undergoing work experience at Bright Blue. Views expressed in this article are those of the author, and not those of Bright Blue. [Image: Tingey Injury Law Firm]
