There is a danger to judicial independence if media "caricatures" of the judiciary are not acted against by politicians and others with responsibility for the administration of justice, Supreme Court Justice Lord Hodge has said in an address.
Lord Hodge, one of the two Scottish Justices on the UK Supreme Court, was speaking to the Lincoln's Inn Denning Society earlier this month, soon after the High Court ruling against the UK Government on its powers to give article 50 notice to withdraw from the European Union without recourse to Parliament. The decision led to headlines such as one that branded the judges "enemies of the people", and what was widely seen as an inadequate response in defence of judicial independence by Liz Truss, the Secretary of State for Justice and Lord Chancellor.
In his speech, Lord Hodge identified 10 "pillars" of judicial independence, which had developed in modern times but several of which, he stated, had their origins in the 17th century. These included:
- a "clear constitutional commitment" to the independence of the judiciary and the rule of law, now enshrined in s 3(1) of the Constitutional Reform Act 2005, and s 1 of the Judiciary and Courts (Scotland) Act 2008;
- the exclusion, or minimisation, of political considerations in judicial appointments;
- adequate finance, for salaries, court resources, and security;
- immunity from suit for the exercise of judicial functions;
- security of tenure, with prescribed disciplinary procedures;
- the separation of powers, particularly in the sense that judges do not advise ministers, and ministers do not attack the courts or the judiciary as a whole, and that civil swervants serve only the branch of government to which they are appointed;
- accountability, through public access to the courts, judges being required to give reasons for their decisions, being subject to appeal, and also being subject to formal complaints procedures.
These seven pillars, Lord Hodge continued, related to what others had to do in relation to the judiciary. In addition there were three that concerned what judges had to do to preserve their independence:
- recognising the limits of their role in matters of social, economic or political preferences;
- behaving in such a way as to maintian moral authority; and
- maintaining political and public understanding and support, through proper communications with the public, especially by senior judges, explaining their work and their decisions.
In relation to his final pillar, Lord Hodge observed, with reference to the article 50 case, "There is a danger to judicial independence if elements in the media portray a caricature of the judiciary and if judges, politicians and officials with responsibility for the administration of justice do not act to correct misunderstandings. Some of the media coverage of the High Court’s decision on the article 50 challenge last week highlights this danger."
After referring to the work currently being done to maintain contact with the other branches of government, Lord Hodge concluded by referring to the declining number of politicians with legal experience, and of judges with political experience, and the attendant risk of politicians losing interest in the justice system. He concluded:
"This would be most unfortunate, as all three branches of government and the public at large have a vital interest in the rule of law. If I may conclude with a prediction, it is that judges, lawyers and all who care about the rule of law will have to work to support the 10th pillar, to maintain political and public understanding of and support for the rule of law and the independence of the judiciary which is its necessary component."