Lord Burnett of Maldon

Independence: a two-way street

Both judges and politicians must respect long-standing constitutional conventions


This article is taken from the July 2022 issue of The Critic. To get the full magazine why not subscribe? Right now we’re offering five issues for just £10.

The other day, a judge I hadn’t seen for ages took me to task over my book Enemies of the People? I had answered the question posed in my title by asserting that judges were just about the only friends we had. “We are nobody’s friends,” he insisted. “We’re independent.” 

Well, yes. But what does independence mean in this context? That question was addressed recently by the lord chief justice of England and Wales in a major but little-reported lecture delivered at the Hebrew University of Jerusalem.

Lord Burnett of Maldon focused on institutional independence — the status of the judiciary as an institution rather than the independence of individual judges. There was no mention of this in legislation until 2005, when parliament gave the job of defending judicial independence to the lord chancellor. But the principles have been hard won over the centuries.

In 1701, the monarch lost the right to sack the judges. In 1760, parliament gave judges full security of tenure; until then, their appointments had ended on the death of the sovereign. In the same year, judges’ salaries were protected — though there is still doubt about their pensions. 

Independence means that judges are responsible for their own training arrangements and the government has only a limited involvement in senior appointments. Listing remains a judicial function: ministers cannot tell the courts which cases to prioritise.

In return, judges must now keep out of politics. One morning in 1997, I watched five judges in what was then the UK’s highest court hearing an appeal by the home secretary, Michael Howard. Later that day, some of those judges spoke against Howard’s proposed sentencing reforms during a debate in the House of Lords. That “anomaly”, as Burnett described it, ended in 2005.

The chief justice then argued that “institutional independence requires proper and effective accountability”. The first way of ensuring that, he explained, was through open justice. Greater public access to court judgments helped enhance public understanding of the courts.

High standards were also maintained by appellate accountability: “almost all judicial decisions are capable of being appealed if they arguably disclose legal error”. And now we have “explanatory accountability”: judges regularly answer questions from press and parliament, though not about their decided cases. 

An effective disciplinary system, focused on judges’ conduct rather than their decisions, provides public accountability by sanctioning those who bring the judiciary into disrepute. That system must be administered by the judiciary, not the government or the legislature. And yet disciplinary action must be signed off by the lord chancellor, a member of the Cabinet.

That led Burnett to his concluding theme: the role of the executive in supporting institutional independence. “Attacks … on the institutional independence of the judiciary not only undermine the judiciary, but the rule of law itself,” he said. “Executive support for the judiciary is not an optional extra within a democracy governed by the rule of law. It is a necessary means of securing it.”

“Attacks on judicial independence not only undermine the judiciary, but the rule of law itself”

Were judges getting the support they needed from the executive? The lord chief justice must work closely with the lord chancellor and Burnett was careful not to break confidences or name names. But everyone knew who he had in mind when he said the lord chancellor had a “duty to engage publicly on behalf of the judiciary in the rare circumstances when public attacks are launched upon the judiciary as a whole or upon individual judges”. 

“Enemies of the people” was the notorious headline the Daily Mail used in 2016 to attack three judges who decided the formal Brexit process could not be triggered without legislation. Liz Truss, lord chancellor at the time, said nothing for two days and then, while maintaining her support for judicial independence, insisted it was not for her to condemn the newspapers. Her failure to “engage publicly” has clearly not been forgotten.

And what of Dominic Raab, the incumbent? Again, no names, but a very public message from the chief justice. “Lord chancellors must be ready to deploy their authority and say ‘no’ in circumstances where such a response may be unwelcome. They must be able to rein in their colleagues who say things which sit uneasily with the rule of law or judicial independence.”

Who was Burnett referring to? Ministers who accused the judges of acting politically, as one appeared to do after the prorogation case in 2019? A foreign secretary — Liz Truss again — whose plans to override the Northern Ireland protocol may break international law? He would not be drawn.

I asked the chief justice how he assessed the current risk to the rule of law and judicial independence in England and Wales. 

He replied it would remain small if all concerned recognised the boundaries and respected long-standing constitutional conventions. “Should that cease to be the case, then the risks will increase.”

Burnett’s reply was typically cautious. Judges, he says, must respect the roles of parliament and the government. What worries him is that this respect may not be reciprocated.

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