Judicial independence

• Separation of Powers

  The theory that legal power is divided into 3 institutions:

  1. Legislature - Parliament
  2. Executive - Government
  3. Judiciary

  It's important because otherwise one branch would have too much unchecked power.
• What is judicial independence?

  The idea that the judiciary is not tied to other arms of the state - they aren't law makers or government officials).

  • Impartial - No connection to the cases they are dealing with
  • Critical to a judge being able to carry out their role properly!
• Why is it important that judges aren't connected to the state?

  • They can do their jobs without pressure from the government
  • They can hold the government to account
  • E.g. Through judicial review
  • Removes the risk of biased decisions.
• The Constitutional Reform Act [2005]


  s7(1) removed the Lord Chancellor as the head of the judiciary

  s3(1) The Lord Chancellor must uphold judicial independence

  s3(5) The Lord Chancellor must not influence judicial decisions
• What 2 rules does s3 of the Constitutional Reform Act set out?

  1. The Lord Chancellor must uphold judicial independence
  2. The Lord Chancellor must not seek to influence judicial decisions
• The Supreme Court

  Used to be called the House of Lords Court.

  In 2009, the CRA 2005 kicked out Law Lords from HoL and created a new supreme court.

  • This removed peerage = Judges can't be MPs
  • Law Lords are now known as Justices of the Supreme Court.
• Security of Tenure for Superior Judges

  Tenure = holding an official position

  Superior judges have security of tenure = never be sacked!

  • Cannot be dismissed by the government / Lord Chancellor
  • They can only be removed from office if there is a petition from both Houses of Parliament
  • No judge has been removed this way
  • They can make law without government pressure
• Security of Tenure for Inferior Judges

  Inferior judges have less security. They can be removed by the Lord Chancellor for incapacity or misbehaviour, but only with the consent of the Lord Chief Justice.

  • Potentially means more pressure to keep the Executive happy, but this is mitigated by the head of the judiciary also playing a part in the decision.
• Independent Salary 


  • Judges paid by an independent body and so Parliament cannot change the amount judges get paid.
  • This removes pressure from judges pleasing the legislature for fear of financial repercussions.
  • However, Parliament do have the power to change the age of retirement and pension eligibility for judges, so there is still some risk of influence from the legislature.
• Immunity from suit

  • All judges are immune from being prosecuted for any acts carried out during their duty.
  • Also immune from being sued for any acts that happen during their duty, including defamation claims
• Judicial Review

  • If delegated legislation unfairly affects people, they have "standing" to bring an application for judicial view
  • Where the Court will review how the law was made and if it is ultra vires and should be considered void.
  • Shows the ability to keep the power of the executive in check.
• How does judicial review act as a check on Government power?

  Court will review how the law was made - ultra vires = void.

  • Shows power of executive is in check.

  E.g. R (on the application of Miller) v Prime Minister

  • PM suspended parliament to push his Brexit deal through. The Supreme Court ruled that the use of OIC was unlawful.
• The Human Rights Act [1998]


  S4 of the HRA allows judges to make a "declaration of incompatibilty" regarding an Act of Parliament

  • A formal warning to the legislature that an Act breaches a right/some rights listed in the ECHR
  • This keeps the powers of the state in check so they:
  • Don't abuse their powers to infringe our basic rights
  • Pressure is put on the legislature to change bad law.
  • However, declaration of incompatibility have no legal effect = Parliament can totally ignore them!
• A v Secretary of State for the Home Department [2004]

  The court held that only detaining foreign nationals in this way breached article 5 (right to liberty) and 14 (freedom from discrimination) of the ECHR.

  • The government then replaced the problematic section of the Anti-Terrorism, Crime and Security Act with the Prevention of Terrorism Act so anyone of any nationality can be detained.
• Re Pinochet [1998]


  A judge was the chairman of the prosecution party, Amnesty International. The court held that Augusto Pinochet (former dictator of Chile) did not have diplomatic immunity but a re-trial was ordered because of Lord Hoffman.
• Judicial independence

  • The Constitutional Reform Act 2005
  • Removing judges from the House of Lords
  • Security of Tenure
  • Judicial impartiality
  • Judicial review
  • The Human Rights Act 1998
• R (Miller) v The Prime Minister [2019]


  Boris Johnson suspended Parliament, through an Order in Council, in order to push his Brexit deal through without opposition. Gina Miller, a Scottish lawyer and MP, challenged the legality of this.

  The Supreme Court ruled that the use of the OIC was unlawful.
• R v Home Secretary, ex parte Fire Brigades Union [1995]


  It was held that the changes to the Criminal Injuries Compensation Scheme made by the Home Secretary were unlawful.
• Agricultural Training Board v Aylesbury Mushrooms [1972]


  When creating new training regulations for agricultural workers, the minister was meant to consult various parties but he only sent 1 letter.

  The Court ruled that this decision was ultra vires.