Essay: To what extent is the judiciary in the UK politically neutral? Compare with another federal state

The judiciary in the UK is the branch of government that is responsible for deciding any legal disputes which preside over the court system, including everyone from justices of the UK Supreme Court down to lay magistrates. This branch gives judges the role of interpreting legislation, as well as the responsibility of developing the Common Law by setting legal precedents. The judiciary in the UK has both independent as well as neutral principles that prevent external pressure and influence in order to eliminate any partisanship within it. This differs from the judiciary in the USA as that branch of government isn’t politically independent, but is exposed to a substantial amount of influence and pressure that determines the rulings in court and constitutional interpretations. The US constitution allows the judiciary to be a separate institute from the other branches, and this system of separation of power does not require it to be neutral. Overall, however, the judiciary in the UK is mostly neutral in practice whilst it is not in the USA due to its constitutional nature.
The judiciary in the UK is politically neutral, requiring judges to ‘treat all those who come before them equally and that they are fair and impartial in their dealings’, making this principle an essential requirement of the rule of law. This is due to the judiciary having judicial independence as one of its principles, which refers to the ‘existence of a distinct and separate body of individuals who alone exercise judicial power and are not subject to undue influence from the legislature, the executive or anyone else’, making it free from any political control. Such independence also allows judges at court the application of justice in a fair way without fearing judgemental consequences or any accusations of judicial activism, meaning that their rulings will not be based on personal or political considerations, but only on existing law. This principle was greatly highlighted and demonstrated in the October 2013 ruling of the Supreme Court against the government’s ‘back to work’ schemes. The Court of Appeal found that the government had acted unlawfully in implementing its ‘back to work’ schemes for unemployed people and ruled that the government had failed to properly inform them of the details and penalties that were necessary. Even though the government appealed to the Supreme Court to overturn it, the Supreme Court supported the Appeal’s judgement, making this case a vital example of judicial independence as the Supreme Court confidently ruled against one of the government’s flagship policies in a case which attracted a lot of media attention. Furthermore, it makes this significantly important as it ensures that everyone is subject to the law and that even the government can’t ignore the law, whilst also highlighting how both the Court of Appeals and Supreme Court ruled this out with full neutrality. Therefore, with the principle of judicial independence in place, the judiciary in the UK is politically neutral.
In contrast to this, the judiciary in the USA is not politically neutral and judges often set precedents and base their rulings on personal political views, not just constitutional interpretations of the law. This makes judicial activism a significant difference between the judiciary in the UK and the US as personal views and political considerations play a vital role within the judiciary in the US, allowing judges to publicly exercise their political views and reveal where they stand on that spectrum. Such difference derives from the way the US judiciary appoints its justices in the Supreme Court, which is through presidential nominations. The current Court, the Robert’s Court, under the Chief Justice of the US, John G. Roberts, Jr., has eight associate justices, and all nine are politically divided based on their appointments. Four of the justices have been appointed by a Democratic president, whilst the five others have been appointed by a Republican one. Some of the liberal associate justices that have been appointed by a Democrat president are Elena Kagan and Sonia Sotomayor, who both were nominated and later appointed by President Barack Obama during his presidential term, whilst others were appointed by Republican ones such as Neil M. Gorsuch, whom was appointed by President Donald J. Trump in 2017, who is also the current leading president. Such appointment process is truly ridiculous in its nature as it allows a president to nominate a judge that shares the same beliefs and political views as them, and then confirm this appointment through a Senate vote that is usually just a vote down party lines. This was demonstrated in president Obama’s nomination of Sonia Sotomayor as only nine Republicans supported her out of all the others in the Senate, let alone the fact that he then tried to nominate Merrick B. Garland, yet that nomination was not even acted upon as the Senate was then controlled by the Republican party and so did not even let him be considered. This all highlights how the votes are becoming increasingly partisan in Congress and that political neutrality can never be achieved in the US judiciary due to that large amount of partisan that stems from its constitutional nature, which is also where all the judicial power comes from – Article 3 of the Constitution. As the Supreme Court is to be the guardian of the sovereign, entrenched document, containing the USA’s fundamental laws and core values, it effectively exercises its power of judicial interpretation of the constitution, but, with no political neutrality in its precedents. This could be illustrated in the Supreme Court’s 5-4 decisions that tend to be seen as results of “an ideological division… with the conservatives on one side and the liberals on the other”, as described by the Supreme Court correspondent Adam Liptak. Having such split rulings portray strong partisanship as the precedents set become politically motivated, creating a huge separation within the system and judiciary.
Nevertheless, such judicial power is still somewhat controlled by some checks and balances on the judiciary by the other two branches of government, the legislature and executive. The aim of this is to ultimately encourage a spirit of bipartisanship and eventually compromise between the president, Congress and the judiciary, making them work together rather than pursuit a partisan approach. Most importantly for the judiciary is that all judicial appointments need to be confirmed by a majority in the Senate, attempting to create some sort of neutrality in theory, but not in practice. This was illustrated in some of the appointments that were confirmed to the Supreme Court such as Sonia Sotomayor’s one where only nine Republicans voted in favour of her, showing how the leading party in opposition still favour their biased political beliefs first. In the UK, however, the judiciary has a different appointment system, the Judicial Appointments Commission (JAC), that ensures political neutrality as the executive or leading prime minister do not make any nominations or appointments. This eliminates most political bias in the Supreme Court as well as other external factors that could have the potential of affecting the composition of the Court with its rulings. The JAC tests potential judges’ ‘independence of mind and soundness of judgment’, eliminating any risk of potential bias growing in such an early stage of the selection process. This is significant in order to establish as much neutrality as possible, making this stage vital highly effective in contributing to a more politically objective judiciary in the UK. Furthermore, this was also supported by Lord Napier who openly described the selection of the judges “likely to be free from political influence”, outlining how much neutrality is taken into account when appointing figures who would be dealing with the law and making legal judgements, whilst maintaining strong partisanship.
Another essential aspect of the selection process by the JAC is to hold a ‘fair and open competition’ to all candidates in order to allow them all an equal chance at being selected, further emphasising the importance of equity in the judiciary, with no bias taking place. However, this is yet another difference between the judiciary in the UK and the judiciary in the US, as bias in the selection process there is a recurring theme. Not just through presidential nominations alone, but the lack of equity and extreme bias portrayed in such nominations. An exceptional example of this was Brett M. Kavanaugh’s appointment by President Donald Trump, despite Kavanaugh’s unfit and inappropriate character. This is mainly due to allegations of sexual misconduct against him with over three victims involved, highlighting the fact that bias was the main factor in his appointment, not due to him being an efficient or even worthy associate justice. Moreover, having Trump’s administration repeatedly defend him through these allegations and ensuring his appointment to the Supreme Court only emphasises that bias was the prime motive to it. This exposes Trump’s desperate need of an associate justice with similar judicial philosophy and political views to him to be appointed, which, again, contributes to the judiciary in the US having strong bias roots and body. Such great difference between the two systems clearly shows the importance of the way neutrality is achieved. The selection process in the UK incorporates various elements to avoid external factors from affecting the objectivity holistically, whilst also preventing the risk of bias of being a rising emerging factor. The likely implications of any politically motivated appointments is that they could be seen by the general public merely as appointments that are not based on merit, which would raise great ‘concern about the judge’s independence and impartiality on the bench’, threatening the extent to which they would be politically neutral.
The lack of diversity in the composition of the judiciary in the UK is a serious factor that threatens political neutrality in the UK. In the judicial selection process, one of the main principles of transparency, in particular, supports the ‘prioritisation of merit and a fairer reflection of society’. This, however, is jeopardised by the lack of diversity in the composition of the judiciary noticeable at the level of the High Court and above. The JAC, which now recommends all appointments to the Lord Chancellor can only have regard to the need to encourage diversity in the pool of applicants. This duty aims to address the persistent criticism of the judiciary that the judges have mainly been white, male and upper middle class, privately educated Oxbridge graduates and barristers. Such extremely narrow pool from which potential judges are drawn from where most of them being privately and Oxbridge educated men who are beyond middle age, endangers the fact that judges can be truly neutral. Some possible factors to explain this could be the different upbringings, environments and life experiences that these judges could have had to help form and shape their mindsets, lifestyles and most commonly their political affiliation. The likely implication of this is an increased risk in partisanship once they are successfully selected into the judiciary, as it would then be an unintentional ground factor that motivates them to base their legal reasonings on even if they attempt to be completely neutral. Having a more diverse range of judges in this branch of government such as more women and ethnic minorities, as well as a wide variety in class would be a huge contributory factor in ensuring a more politically neutral judiciary in the UK. Most importantly, that would lead to less biased court decisions as the judges would be able to connect with the defendants who most likely will be of diverse backgrounds, not necessarily limited to only white, upper middle class and middle aged men. It would be beneficial if it were to become more diverse in order to create fairer and more politically neutral trials. As of April 2018, in the recent Judicial Diversity Statistics report only ‘29% of court judges and 46% of tribunal judges were female’, which is significantly low as it is not representative of the wider female population in the UK. Although the report also states that this is a 5% increase since 2014, that, in fact, only highlights the ridiculously slow progress and improvement this has been getting as it is only about one third of the entire court, as of April 2018, is made up of females. Similarly, in terms of ethnicity, only ‘7% of court and 11% of tribunal judges were Black, Asian or Minority Ethnic (BAME)’, only that only being 1% of an increase from 2014, further outlining the strong lack of diversity in the system that is supposedly meant to be the most fair and objective system in bringing about justice to the people. Therefore, the lack of diversity in this field truly puts the judiciary being completely politically neutral at great risk.
Overall, the judiciary in the UK is mostly politically neutral in its system as it aspires to achieve a strong sense of partisanship through its independence. The main aspect of the judiciary that attempts to ensure complete judicial neutrality is its selection process with the Lord Chancellor. The current system in the UK in selecting judges, compared with the USA, a more federal state, is highly neutral as that system relies mostly on nominations and politically motivated appointments. Moreover, the judges and the judiciary in the UK were once expected to simply apply the law, rather than ruling on its legality or constitutionality, which is the case in the US, as one of the judiciary’s main powers and roles in its codified constitution is judicial interpretation in the courts. The judiciary in the UK does not because of the supremacy of statute law within its uncodified constitution, meaning that UK courts have in practice no power to declare Acts of parliament unconstitutional. This links to the doctrine of parliamentary sovereignty, highlighting the difference between their powers as it gives those political powers to parliament. This contributes to the political neutrality of the judiciary in the UK as declaring Acts unconstitutional is a vital power of the judiciary in the US, hence why that branch is less politically neutral. However, the issue that threatens political neutrality the most regarding the judiciary in the UK, is the alarming lack of diversity in the entire judicial branch. As even though judicial independence strives to eliminate bias, there are still external factors that can not be controlled or prevented, and will affect the entire system, failing to thoroughly eradicate bias. Finally, the USA, as a federal state, has a judiciary that greatly differs from the judiciary in the UK, with the main difference being that it is not politically neutral and portrays a substantial amount of bias, whereas the judiciary in the UK is mostly politically neutral.