4The importance of a robustly independent judiciary
Role of the independent judiciary in enforcing human rights
84.Judicial independence is a central feature of the UK’s constitutional arrangements. The judiciary is one of the three pillars of our constitution, alongside Parliament and the executive. Each has its role and function, and together they complement each other to create the constitutional balance needed to support democracy, rule of law and the stable government necessary for peace and security. It is essential that the judiciary is impartial and independent of all external pressures so that those who appear before it, and the wider public, can have confidence that cases will be decided fairly and in accordance with the law. As the Courts and Tribunals Judiciary website puts it:
“Only in this way can judges discharge their constitutional responsibility to provide fair and impartial justice; to do justice as Lord Brougham, a 19th Century Lord Chancellor, put it ‘between man and man’ or as Lord Clarke, former Master of the Rolls put it more recently in 2005, ‘between citizen and citizen or between citizen and the state.”86
85.Lord Thomas set out why judicial independence is especially important to the enforcement of human rights:
“It seems to me that no system that truly enforces human rights can operate without a judiciary that is completely independent, and with that independence supported by Parliament and the Executive.”87
Lord Neuberger concurred:
“The essence of the way our system works is that Parliament makes laws in a general sense, and the laws are applied in individual cases by the judges. There are few areas where the facts are more sensitive and more determinative, and where rights are more acute, than the area of human rights. That is where the judges, with their decision-making powers in relation to individual cases, applying the law that Parliament has made, come into their own. Unless Parliament is independent of the judiciary and the judiciary is independent of Parliament, it does not work.”88
86.In passing the Human Rights Act in 1998, Parliament increased UK judges’ involvement in public policy matters, human rights cases having previously been determined by judges in Strasbourg. Where a decision interferes with human rights, the court needs to consider whether that decision was proportionate, with reference to the reasons for making it and the extent of the interference with the human right in question. In doing this, the Courts show a degree of deference to the proper role for Government in decision-making, and so will be reluctant to simply replace a decision-making role, but will highlight where a result is not proportionate. Furthermore, the HRA tasked the Courts under sections 3 and 4 with interpreting the law in a way that is compatible with human rights, so far as it is possible to do so, and if it is not possible to do so, to make declarations of incompatibility. After a declaration of incompatibility, Parliament may then consider whether it wishes to amend the law.
87.Some have questioned whether this augmented role shifts the balance of power too far towards the judiciary and undermines the rule of law.89 In their evidence to us, senior retired judges rebutted the argument that these developments had substantially altered the relationship between the judiciary and the executive. Lord Neuberger reminded us that the new powers given to judges under sections 3 and 4 of the HRA were not part of a power grab initiated by the judges themselves, but rather were granted to them by Parliament. He also said:
“I like to believe—I do believe—that the relationship between the judiciary and the Executive, and the judiciary and Parliament, has remained one of serious mutual respect. While inevitably there have been more opportunities for disagreement, I do not think that either relationship has been harmed in any significant way.”90
The ECHR as a ‘living instrument’
88.The living instrument principle exists to enable the application of the ECHR to adapt to modern times and technologies. For example, “correspondence” has been taken to include emails, even though internet and email were not envisaged at the time of the drafting of the Convention as those technological developments had not yet occurred. Such an interpretative approach allows the Convention to remain relevant through modern technological and societal developments.
89.This principle, is, according to some, including the Policy Exchange’s Judicial Power Project, being used to extend the Convention into new areas and in effect make new rights.91 The majority of those who submitted evidence to us did not share this viewpoint. They rather asserted the ‘living instrument’ principle to be an important one, without which the framework would risk becoming irrelevant and ineffective. For example, Liberty gave these illustrations of how the living instrument principle has been used in practice:
“The importance of the ‘living instrument’ approach can be seen in Rantsev v Cyprus and Russia. The ECtHR held that trafficking fell within the prohibition on slavery in Article 4 of the Convention, commenting that “the absence of an express reference to trafficking in the Convention is unsurprising” since it was a relatively new phenomenon. Again, in S and Marper v United Kingdom the ECtHR held that retaining DNA samples of individuals who had been arrested but later acquitted violated the Article 8 right to respect for private life. A strictly literal approach of the Convention would deny protection to victims and future victims of human rights violations.”92
90.The living instrument doctrine allows core protections to adapt to technological and societal developments to prevent the Convention from becoming unintentionally obsolete. As such, this is indeed a crucial and vital tool. However, the living instrument doctrine is not a tool of rights creation. It should be used to apply agreed Convention rights to new technological and societal realities. It does not, and should not, be misused to seek to develop radically new rights where none existed before. Indeed, were it to do so, the ECtHR would be acting unlawfully.
91.The ECHR was agreed by the member States of the Council of Europe and the ECtHR was created to apply those agreed Convention rights. This is a necessary and useful function and one that should remain a necessary and useful function. However, were the Court to move beyond this function and to seek to apply new rights that went beyond those Convention rights, it would be acting outside of those powers conferred on it and therefore the Court would be acting unlawfully as a matter of international law and the law of international organisations. For this reason, the living instrument doctrine cannot lawfully be used to create new rights in areas beyond the scope of the Convention and the rights envisaged by the High Contracting Parties. The member States did not confer such rights upon the Convention system and therefore were it to act beyond the scope of those powers it would be acting unlawfully and beyond its powers. We consider this gives a good deal of comfort that the Court, as a body giving effect to the rule of law, would not - and indeed would not wish to be seen to - go down this route. In this light, we welcome the renewed focus on this topic by the Court and Convention bodies in recent years to ensure that it continues its useful role of applying the Convention as part of the rules-based international system.
92.When we asked senior retired judges about their experiences of the ‘living instrument principle’, they agreed that interpreting legislation in light of modern circumstances was a necessity which did not cause any serious problems in practice. Lord Hope of Craighead told us:
“I have not experienced a case where it has really been open to the argument that we are being too modernist and that we should go back and look at the convention in the light of the situation when its framers were there. That argument has never been presented to a court in which I have been sitting. On the contrary, the argument is always accepted that we are looking at modern conditions and making sense of the provision in the light of the circumstances as they are today.”93
93.Lord Neuberger agreed with him but did advise that the principle should be operated with caution: “If you give undemocratically accountable judges that sort of power, they have to exercise the power with great caution and great diffidence—but they should exercise it.”94
94.There may be controversy over human rights judgments, but it seems to us the issue is not whether the Convention should be treated as a living instrument: law has to be interpreted in the light of contemporary circumstances. Rather it is whether the courts are exercising their powers with the “caution and great diffidence” urged by Lord Neuberger. On this, there is a role for debate, but how to exercise those powers must be a judgement for the judges sitting on each individual case, subject to always showing the appropriate degree of deference to the proper role for Parliament and Government in decision-making.
The danger of Government criticism of human rights judgments
95.In the terms of reference for this inquiry, we sought views on the question of whether the Government has been too ready to criticise human rights judgments, in a way that undermines judicial independence. Amnesty International UK responded in these terms:
“Ready criticism has been a feature of successive administrations. It has been particularly prevalent in relation to asylum, deportation of people whose presence is deemed not conducive to the public good and consideration of private and family life in immigration decision-making.”95
96.Speaking in 2013 in a debate on the Immigration Bill, Theresa May MP, then Home Secretary, asserted that: “some judges have [ … ] chosen to ignore the will of Parliament and go on putting the law on the side of foreign criminals instead of the public.”96
97.Others disagree that this is a major issue. For example, the Policy Exchange’s Judicial Power Project believes that there have been few recent examples.97 The same submission also questions the assumption that ministerial criticism of judicial decisions should be presumed to be illegitimate. Instead, it asserted that ministers have a responsibility to articulate their concerns about judicial decisions, particularly in human rights cases. In the first place, this is because they require the assessment and balancing of various individual, social and national interests, which is the fundamental responsibility of Parliament and Government to undertake and secondly, because the structure of the HRA recognises the scope for reasonable disagreement between politicians and judges on questions of rights.
98.The Ministry of Justice in its written submission takes a different view:
“A judgment is not an invitation for dialogue. The judiciary are not in position to respond. It is an absolute consequence of the process of the rule of law and must be respected as such. Ministers might comment on a judgment but they must do so with restraint and it is right that judicial decisions are accountable solely through appeal to a higher court”.98
99.In our view, Government Ministers should be restrained in their reaction to court judgments, bearing in mind that in cases where they are a party, they can exercise appeal rights and that they can seek to change the law. They must respect this self-denying ordinance and comment with restraint.
Government’s central role in supporting and defending the independence of the judiciary
100.As set out in Chapter 2, the independence of the judiciary plays a central role in fundamental UK constitutional values and in upholding the rule of law and enforcing human rights in the UK. It is therefore critical that all constitutional actors operate with respect to British values such as the independence of the judiciary. In the wake of the High Court judgement in the Article 50 case last year, the judges involved, who included Lord Thomas, attracted significant criticism in the media, most notably in the Daily Mail, which branded them ‘Enemies of the people.’99 Following this, the then Lord Chancellor, the Rt. Honourable Liz Truss MP, was also criticised for failing to adequately defend the judges and their independence.100 Lord Thomas and Lord Neuberger both echoed these criticisms.101
101.In written evidence to this inquiry Amnesty International UK gave its assessment:
“Successive UK Governments have failed to defend the rule of law in word as well as deed, both by failing to implement judgements in a timely fashion and by failing to defend an independent judiciary. The Lord Chancellor when appointed vows to uphold the independence of our judicial system and the rule of law. As such, the slow and lukewarm response to media attacks on judges following the Article 50 Brexit decision was worrying and disappointing.”102
102.Although direct criticism of the judiciary by Ministers may not be commonplace, the “Article 50” example is not unique. In 2013, the then Home Secretary, Rt Hon Theresa May MP, made comments in the Mail on Sunday in an article headlined: “It’s MY job to deport foreigners who commit crime–and I’ll fight any judge who stands in my way”.103
103.When he gave evidence to us, Lord Hope made the point that in his opinion criticising judges is serious because it undermines the rule of law: “The press is one thing, but, as far as the Government are concerned, one of their responsibilities is indeed to maintain the rule of law. That is why great caution is required when criticising judges.”104 While senior judges we heard from assured us that they are not intimidated by such criticism,105 it should not be necessary for judges to have to withstand political censure, especially in a heated climate, such as the aftermath of a terrorist attack or a particularly dreadful crime.
104.Section 3(1) of the Constitutional Reform Act (“CRA”) 2005 places all Ministers under a duty to uphold the continued independence of the judiciary, but the specific duty to have regard to the need to defend that independence rests with the Lord Chancellor and is set out in the oath she or he is required to take (s.17 CRA 2005). In oral evidence, the Lord Chancellor told us he believed he had striven to uphold this duty to date and would do so in the future:
“I have repeatedly made the case for the rule of law and the independence of the judiciary. It is also a point that I have not hesitated to raise in Cabinet meetings.
There may well be other circumstances in which I would be prepared to step in, such as if I considered that the independence of the judiciary was under threat or a level of abuse was being directed at the judiciary. I have repeatedly made the case that I would be prepared to step in to make the argument for it. That is the central point: to be that defender and that advocate.”106
105.While we welcome these strong assurances from the current Lord Chancellor, we are concerned to ensure that these standards must be met regardless of who the post-holder is at any particular time. In oral evidence Lord Thomas posed the question of whether stronger legislative duties are required:
“It is important to review whether imposing the duty on the Lord Chancellor is enough and whether a more specific duty ought to be imposed on other ministers as well.”107
106.Lord Neuberger expressed some doubt as to whether this would be a good course of action, saying that he felt it might devalue the existing duty in some way. The Lord Chancellor when he appeared before us agreed, arguing that it creates a risk that ‘no-one feels that it is their specific responsibility to make the case’.108
107.We are sympathetic to the argument that extending the duties within the Constitutional Reform Act 2005 to cover all Ministers may have the effect of diluting those duties. Nonetheless, we consider that the Government as whole needs to be more proactive in its defence of the independence of the judiciary. The Lord Chancellor has a duty to have regard to the need to defend the independence of the judiciary. We recommend that the Government consider amending the Ministerial Code to reinforce the duties on Ministers to uphold the independence of the judiciary, whilst retaining the specific role for the Lord Chancellor in defending the judiciary.
86 Courts and Tribunals Judiciary, Independence
97 Examples include criticism of the Strasbourg Court’s decision in Hirst v UK (No 2) [2006] 42 EHRR 41; Theresa May’s criticism of Article 8 case law in a speech at the Conservative Party Conference in 2011; criticism of the Strasbourg Court’s decision on whole life sentences in Vinter v UK [2013] 55 EHRR 34; and criticism before, during and after the EU referendum campaign of the Court of Justice of the EU’s case law under the EU Charter of Fundamental Rights.
99 ‘Out of touch judges’, Daily Mail, 3 November 2016
100 For example: , ‘Liz Truss defends judiciary after Brexit ruling criticism’, The Guardian, 5 November 2016
101 For example: ‘Liz Truss defends judiciary after Brexit ruling criticism’, The Guardian, 5 November 2016 and ‘Neuberger attacks ‘enemies of the people’ criticism’, Financial Times
Published: 19 July 2018