After the recent death of US Supreme Court Justice Ruth Bader Ginsburg, US President Donald Trump lost no time in nominating Amy Coney Barrett. Her appointment would create a conservative majority and an opportunity for Republicans to shape US law and US society for a lifetime. The stakes are high and both political parties know the power of appointing a judge in their own image.
The circumstances in which President Trump has made his latest nomination is an opportunity for reflection upon the judicial appointments system and its relationship with judicial independence as a whole.
Appointment to the US Supreme Court involves the president (the executive), making a nomination for judicial appointment and the Senate (the legislature), confirming the appointment after public hearings.
In short, two branches of US government exercise full control over appointment to the third branch of government.
Invariably, any US president uses this power to ensure the appointment of a candidate who broadly shares the president’s thinking and outlook. This is an opportunity to appoint a judge whose jurisprudence will shape American law and society for a generation, but from a political perspective attractive to the president.
While the president’s nominee might be a distinguished jurist, fulfilling political objectives will be the president’s first objective in the appointment. In other words, the president will be seeking an appointment in his own best interests and which reflects his cultural perspective.
In this country we have tended to take judicial independence for granted.
Threats to judicial independence from the executive and/or legislature is something which happened in other countries. Judicial independence was something about which this country could only serve as an example to others. There was almost a sense of smugness in our certainty. However, there have been some worrying signs of late.
One such sign was when the then Minister of Justice and Lord Chancellor Liz Truss was extremely slow to condemn the Enemies of the People headline in the Daily Mail and its attack on the then Lord Chief Justice, Master of the Rolls and Lord Justice Sales in 2016. The court had ruled that the government would require the consent of Parliament to give notice of Brexit. The Home Secretary was criticised for failing to uphold her statutory duty to protect the judiciary from such partisan attacks.
In September 2019 the then Business Minister Kwasi Kwarteng commented in an interview that ‘many people… are saying that judges are biased’.
In the same month the then Attorney General Geoffrey Cox QC suggested that there might need to be parliamentary scrutiny of judicial appointments.
Judicial reviews of government decisions have often been a flash point between the judiciary and politicians. Numerous home secretaries, both Labour and Conservative, including Jack Straw and Michael Howard, have railed against the courts’ decisions, claiming that the judges were making political decisions.
The Ministry of Justice has recently commenced the Independent Review of Administrative Law to consider proposals to limit judicial review. It is feared by commentators that this will be the first of many such reviews, and indicates an intolerance for scrutiny and a disregard for the rule of law. (The review's call for evidence runs until midday on 19 October 2020.)
The mood music is clear: judges are out of control, unaccountable and need to be brought in check by a government that is seeking to give effect to the people’s will.
The same theme runs through Prime Minister Boris Johnson’s recent attack in his Conservative conference party speech on 'lefty human rights lawyers, and other do-gooders'. Judges and lawyers are being assailed for doing their job.
The recent astonishing admission by Secretary of State for Northern Ireland Brandon Lewis that provisions of the Internal Market Bill in relation to Northern Ireland would break international law is not compelling evidence of a government committed to the rule of law.
Judicial independence is inimical to populist and authoritarian governments throughout the globe. They cannot tolerate the possibility of being thwarted by an independent judiciary. Attacking and undermining the judiciary is a tactic which is essential to their strategy.
Attacks on the judiciary have two purposes. First, to create a narrative of an elected people’s government pitted against an unelected elitist judiciary. Second, to create a more compliant and docile judiciary.
A striking recent example of political control of the judiciary is Poland where the government has taken control of the appointments system in order to appoint sympathetic judges. Recent legislation has made it a disciplinary offence for judges to criticise these reforms.
In Sri Lanka the 20th Constitutional Amendment Bill proposes powers to allow the President to make senior judicial appointments after having only heard the observations of a Parliamentary Council comprised entirely of members of parliament or their nominees.
An independent judicial appointments process is fundamental to judicial independence. An appointments process which allows for the selection of candidates on political grounds must be resisted.
In 2017 Commonwealth Law Ministers endorsed a Model Law on Judicial Service Commissions - to establish standards for an independent and fair judicial appointments process as well as judicial disciplinary procedures.
A further impetus for the Model Law was a series of government initiatives to remove senior judges from office.
In early 2012 Mr Justice Mutuna of the High Court of Zambia gave judgment against the Post Newspaper and the Director of Public Prosecutions. The Post Newspaper had supported President Sata in the presidential elections. Within two weeks, the President commenced misconduct proceedings against the judge and two other judges involved in the case.
Later that year the Sri Lankan Parliament brought impeachment proceedings against the Chief Justice one day after the Supreme Court had ruled that a parliamentary bill was unconstitutional. The Sri Lankan Supreme Court then ruled the proceedings of the select committee unconstitutional. President Mahindra Rajapakse nonetheless removed the Chief Justice from office.
In December 2014 the Maldives legislated to reduce the number of Supreme Court judges from seven to five. The judicial service commission comprised of 12 members, eight of whom were connected in one way or the other to government, brought proceedings against Chief Justice Ahmed Faiz Hussain and Justice Muthasim Adnan. Neither judge was given an opportunity to defend themselves and subsequently they were duly removed from office by parliament.
The Model Law on Judicial Service Commissions provides that any commission with powers to recommend the appointment of a judge should be free from political influence. While provision is made for representatives from the legal profession, academia and civil society, political appointees are excluded.
Further, the Model Law sets out the criteria for judicial appointment as well as procedures for a fair and transparent judicial disciplinary process.
The objective of the Model Law is to provide a standard for a process of judicial appointments which upholds the separation of powers and promotes and protects judicial independence.
Promoting and protecting judicial independence: a role for the Bar
It is time for a campaign to promote judicial independence. In no jurisdiction can anyone afford to be complacent about judicial independence.
The public needs to understand what judicial independence is and why it is so important. It is a foundation stone of democracy and without it there can be no social and economic prosperity. It is one of the essential elements of the rule of law.
Without an independent judiciary there can be no right to a fair trial. The public must know that the judge who tries their case – whether it is criminal or civil – has been appointed in a transparent, independent and fair manner and is impartial.
Without an independent judiciary there cannot be meaningful access to justice and human rights cannot be fully realised. Without an independent judiciary there can be no equality before the law.
The public needs to know that when the Supreme Court of the United Kingdom rules that the government has unlawfully secured the prorogation of parliament that it is fulfilling its responsibilities and upholding democracy and the rule of law and not frustrating the will of the people.
There needs to be greater awareness of the Commonwealth (Latimer House) Principles on the three branches of government.
The principles include this statement:
‘Each Commonwealth country’s Parliaments, Executives and Judiciaries are the guarantors in their respective spheres of the rule of law, the promotion and protection of fundamental human rights and the entrenchment of good governance based on the highest standards of honesty, probity and accountability.’
With specific reference to the judiciary, the Principles state:
‘An independent, impartial, honest and competent judiciary is integral to upholding the rule of law, engendering public confidence and dispensing justice. The function of the judiciary is to interpret and apply national constitutions and legislation, consistent with international human rights conventions and international law.’
The Bar has an excellent record of defending judicial independence as exemplified in the Bar Council’s November 2016 statement condemning the attacks on the judiciary arising out of the Article 50 litigation and the failure of the Lord Chancellor to issue a public statement condemning these attacks.
Lord Sumption, no longer restrained by the burden of high Judicial office, when giving evidence to a Parliamentary Select Committee recently said that the government was intent on 'doing down the courts as potential sources of impediments for the government's programme'. Such forthright language from a recent member of the Supreme Court is unprecedented in recent times. The recent Party Conference speeches by the Home Secretary and the Prime Minister attacking 'lefty human rights lawyers' for slowing down the justice system, may be a further sign of things to come.
There is a heightened need for the Bar to continue to be on guard against further attacks on judicial independence and the role of the judiciary. The Bar must play its role in explaining to the public why judicial independence is fundamental to the rule of law and a democratic society.
Published on 8 October 2020.