How independent is the judiciary?
Oli Picken
It has been observed that ‘The British Constitution has always been puzzling and always will be’ . 14 It is probably fair to say that the observer concerned, the Queen, is especially well placed to make such an observation. In this essay, I will discuss a particular aspect of the United Kingdom’s Constitution, namely the ‘separation of powers’, focusing on the role of the judiciary. I consider how independent the judges are and, perhaps just as importantly, how independent they appear to be, particularly in the light of recent developments and trends. ‘separation of powers’ is concerned with the division of power between three institutions: the executive, the legislature and the judiciary. Montesquieu was clear that, although the separation of powers in the United Kingdom was not altogether clear, ‘the independence of the judiciary has to be real’ . 15 If that is right, then it is not sufficient that the judiciary simply appears independent; there must be actual as well as apparent independence. As explained below, the difficulty is that, although recent developments have helped in achieving actual independence, it may nevertheless still be the case that there is an insufficient appearance of independence. As described by the French philosopher Charles-Louis Montesquieu the
whether they be Magistrates Courts populated by lay members of the judiciary, the Crown and County Courts, the High Court or the various appellate Courts, are of a high calibre when compared with other legal systems around the world. This is demonstrated by the frequency with which parties who have no connection with England and Wales agree in their commercial contracts to the jurisdiction of the English High Court in relation to any disputes which might arise between them. This would not happen were it not for the high regard for the judges in England and Wales. It is also illustrated by the extent to which English law has been adopted by other countries, despite the fact that in a number of cases this is the result of the British Empire rather than a matter of free choice. It is also significant that there has never been any suggestion made over the ages that the judiciary of England and Wales is tainted by corruption, certainly not in any systematic way and rarely, if ever, even on an individual basis. The same also applies to political influence, especially since the establishment of democratic government. The contrast with other judicial systems is striking, with regard to two recent cases. Taking the case involving Gu Kailai, the wife of Bo Xilai, who was given a suspended death sentence in August this year after pleading guilty to murdering the British businessman, Neil Heywood, there is substantial speculation that the Chinese legal system has been complicit in a political conspiracy. 17 Similarly, the trial of
There is little doubt that the judges sitting in the Courts of England and Wales, 16
14 HM Queen Elizabeth II, as recorded in Peter Hennessy, The Hidden Wiring (1995) at page 33. 15 See, generally, Baron de Montesquieu, ‘De L’Esprit des Lois’ (1748, Book XI), ch. 6. 16 I leave out of account the position of Scotland simply because it has a different legal system and not because there is any reason to think that the
Scottish Courts are any less independent than those in England and Wales. 17 http://www.telegraph.co.uk/news/worldnews/asia /china/9488357/Gu-Kailai-spared-death-for-Neil-
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