- CONVENTIONS
- There has long existed a constitutional convention that the executive should not criticise judges or their decisions. In return, judges are expected by convention to not comment outside the court room on government legislation.
- It is arguable that both conventions have been undermined in recent years.
- In 2015, the Defence Secretary, Michael Fallon, claimed that the judiciary’s broad interpretation of human rights laws was undermining the Armed Forces, hindering their ability to combat terrorism.
- In March 2013, Lord Neuberger, the President of the Supreme Court, argued that the Government’s cuts to legal aid risked undermining the rule of law.
- In 2015, numerous judges criticised the new ‘criminal courts charge’, which required convicted criminals to pay £150-£1,200 towards the cost of their case.
- PERSONAL VIEWS
- Some critics argue that, when cases raise difficult constitutional or human rights questions, it is inevitable that the personal views of judges will influence the final decision.
- In R (Miller) v Secretary of State for Exiting the European Union (2017), the Supreme Court had to determine whether the Government could begin the process of withdrawing the UK from the EU using its royal prerogative powers.
- The Daily Mail noted that, of the 11 justices hearing the case: four had formal, professional links to the EU, its courts or institutions; five had expressed sympathetic views towards the EU; and six had personal relationships with people who have criticised Brexit and/or supported the Remain campaign.
- For critics, the Supreme Court’s ruling against the Government only confirmed their suspicion that it was not possible for ‘pro-EU judges’ to be entirely impartial.
- LORD CHANCELLOR
- With much of the old Lord Chancellor’s role now transferred to the Lord Chief Justice, it is arguable that the judiciary now lacks a strong voice to represent it in government.
- The CRA does not require the new Lord Chancellor to be a lawyer, and recent prime ministers have made a much more diverse range of appointments.
- Some judges have questioned whether more ambitious, younger ministers, with limited legal experience, will be as able, or as willing, to challenge other ministers.
In 2017, the Lord Chief Justice argued that the Lord Chancellor, Liz Truss, had failed to defend the judiciary, after the Daily Mail ran the headline “Enemies of the people”, after the High Court ruled that the Government could not begin the process of withdrawing the UK from the EU using its prerogative powers.