Threats to the Rule of Law – Independence of the Judiciary

At the time of writing, the rule of law has become a global speaking point. The pressures on the rule of law are playing out to surprisingly similar tunes around the world. As lawyers, working in the court system in the United Kingdom, we are accustomed to supporting the rule of law here and to helping to set the course between the executive, legislature and judiciary according to the right compass. We try to inform the media so that they, in turn, can help the public understand the issues and where the limits on power between these bodies should lie. Nonetheless, it can sometimes feel as though the Bar Council and other legal associations are calling into the void.

But for better or worse, it has become clear to me that we are not alone. I have just returned from two visits to Europe, meeting people from across the globe. Speaking with many foreign Bar and Law Association lawyers, it is clear that the issues affecting the rule of law here resonate with those in other jurisdictions. We may not be at the same point on the journey, but we are often on the same path. I outline just one issue we all have to address to one degree or another.

I venture that the independence of the judiciary as a topic of conversation has never been more discussed in the UK. The two Miller cases shone a light on what the role of the judges should be, in deciding the proper limits on executive power. What is the sphere that belongs to the executive /the legislature/the judiciary? The question of whether the executive is above the law was argued and ruled upon in England and Scotland and finally by the Supreme Court. From the point of view of a lawyer, some of the media reporting was frustrating. It was particularly irksome to have the decision of the Supreme Court described as a ‘power grab’ by the judges when the judgment made clear that the justiciable issues included the limit on the power to prorogue Parliament in order to give effect to Parliamentary democracy through the sovereignty of Parliament. It had no effect, or desire for an effect, on the power of the judiciary whatsoever.

At the recent swearing in of Lord Hodge as Deputy President of the Supreme Court, it was a timely reminder of the judicial oath which all our judges must take: “I will do right to all manner of people after the laws and usages of this realm, without fear or favour, affection or ill will.” The last part of the oath is often quoted but the first is just as important. It is the judges’ job to judge cases not by personal opinion or political expedience, but, regardless of the position or background of the person asking the court to determine a cause, to decide the case according to the laws, constitutional principles and common law of our country. Any attempt to erode or interfere with the judicial oath whether directly or not, must be fought against.

We have seen how judicial independence can be easily diminished and lost elsewhere. Recently, the ‘Law and Justice’ ruling party in government in Poland, has changed various laws, the combination of which undermined the independence of the judiciary: such matters as the determination of the retirement age of the judiciary – in effect forcing judges to retire early; the chamber dealing with discipline of judges being constituted only of newly appointed judges (who were political appointees); undermining of security of tenure of judges; and, just as extraordinarily, preventing judges from referring cases to the CJEU, as required by their membership of the EU. The Bar Council has spoken out in support of the independence of the judiciary in Poland with our colleagues across the world. Nonetheless, the situation is precarious for Polish lawyers and judges, which ultimately means that the rule of law is under threat for citizens of Poland and those affected by its laws. None of this is in the interests of the public. It has little to do with law and justice in the sense that we understand those words. And in December, Bulgaria’s President Orban’s far-right party passed a law setting up a ‘parallel court system’ in which the government will control the hiring and promotion of its judges, who will have jurisdiction over cases relating to “public administration”, including politically sensitive cases such as electoral law, corruption and the right to protest.

I am not suggesting that we are heading in that direction. Nonetheless, I trust that the Constitution, Democracy and Rights Commission will not seek to draw politicians into the appointment of the judiciary or into their sphere of work. The active and robust separation of powers is something of which this country can be fiercely proud. The excellence and expertise of our judiciary is undoubtedly a reason why the courts and arbitration centres of England and Wales are world renowned and so popular with those with even a limited connection to the United Kingdom. It is precisely because our judges keep to their judicial oath that they are relied upon to come to judgments that are fair and uncorrupt. If we tinker with the tenets of the judicial oath, even if only in practice and not in articulation, we will undermine access to justice in a very real sense and lose public confidence in the justice system more broadly.

At a time when we are changing the ties we have with our neighbours and seeking to attract closer relations with others around the globe, we should be ensuring that our justice system retains its deserved reputation as one of the most open and attractive places to resolve disputes internationally. That involves supporting the independence of and the apolitical excellence of the judges.

Amanda Pinto QC, Bar Council, Chair


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