The Rwanda bill and the separation of powers

The judiciary strikes back

Much has been written about judges and civil liberties with regards to government plans to offshore UK asylum applications, but less on the relationship between branches of government

I am tackling this story from the perspective of the often confused territories of judicial independence and neutrality. These two themes do overlap, but they do differ. Independence is about the ability of judges to do their job with politics interference (or pressure, if you prefer) from the the executive and Parliament. Neutrality, on the other hand, relates to inherence bias within the judiciary. Is it the case that senior judges, because of their background (overwhelmingly privileged, white and male), tend to favour certain groups of society when handing down judgment?

So, according to standard textbook theory, the judiciary is free from pressure from Parliament and the executive for the following main reasons:

1. It is argued that pay and conditions of employment keep the judiciary free from corruption and political pressure. Firstly, judges have security of tenure, so whether members of the other branches of government like it or not, a judge cannot be dismissed at will and therefore can act independently. Appointments are for life (retiring age 75), quam diu se bene gesserint (subject to good behaviour). To be removed it must be by an address by both Houses of Parliament. This has not happened since 1830. Secondly, salary is paid from theConsolidated Fund, not by the government. Currently a Justice of the Supreme Court receives just over £200,000 (for the President of the Supreme Court, it is approximately £215,000 - somewhat less than than the PM, by the way, whose official earnings total just under a quarter of a million)
2. The sub judice rules in both houses of Parliament keeps the judiciary free from interference by the executive and legislative branches since MPs and Lords are prevented from discussing a current or impending court case. Two reasons are put forward for the rule: the need not to prejudice court proceedings (which applies also outside Parliament, where it is enforced by the contempt of court rules), and the principle of ‘comity’, whereby it is considered undesirable for Parliament to act as an alternative forum to decide court cases. For example the Secretary of State was precluded from making certain comments regarding the extradition of (the now deceased) General Pinochet.
3. The conduct of judges should be free from criticism by Parliament, except on the rare occasion when there is a substantive motion for an address for removal from office. In early the 1990s, just over 100 MPs signed a Commons motion after a judge had made a controversial decision – but all the MPs received in return was a telling off from the Lord Chancellor!

But it has been argued that the judiciary tends to favour the government more often than it rules against them. There was some hope, and some evidence, that the creation of the new Supreme Court (an outcome of the Constitutional reform Act, 2005), and with it a greater separation of powers, had enhanced the capacity of judges to act independently. But there has also been analysis that judges have been leaning towards the government. According to a 2023 Guardian editorial:

"The supreme court ought to be able to hold governments to account. But since the landslide election of 2019 it has been cowed. An analysis of data by Lewis Graham, of the University of Oxford, suggests a trend, under the leadership of Lord Reed, towards a more “executive-minded” supreme court, at least in terms of a tendency to reject human rights claims and to side with public authorities. Siac also heard much of the evidence in closed session. Transparency in judicial proceedings is essential for building trust in decisions. Yet there was nothing in open session to allay concerns, said Siac, that “many right-thinking people in this country’s Muslim communities (and beyond) feel that they are being treated as second-class citizens, and/or that their welcome is somehow contingent”."

This comes on top of an all-party report by Parliament in 2022 that also criticised the judiciary for being pro-government. The Guardian reported:

"The all-party parliamentary group on democracy and the constitution(APPGDC) said that in the past the response of a government found to act unlawfully was to correct its ways but ministers would now sometimes misrepresent judicial decisions, question judges and threaten to reform the judiciary.

The APPGDC found that, in the last two years, the UK’s highest court made seven decisions in which it had departed from its previous authorities and assumed a position “more palatable” to the government – an “unprecedented” amount that “may have created the impression that the supreme court has been influenced by ministerial pressure”."

But this week the Lady Chief Justice, Sue Carr, appeared to be pushing back against executive creep with regards to the government's Rwanda plans.

The Guardian again:

"The most senior judge in England and Wales has spoken out about plans to recruit and train 150 judges to help implement Rishi Sunak’s Rwanda deportation policy.

The lady chief justice, Sue Carr, said decisions on how judges were deployed should be “exclusively a matter for the judiciary”, adding that plans outlined by the government drew “matters of judicial responsibility into the political arena”.

Her comments came after Alex Chalk, the lord chancellor and justice secretary, announced plans to expand court capacity and recruit new judges to fast-track asylum appeals under the Rwanda bill."