Lord Phillips was the first President of the Supreme Court. He retired in 2012, succeeded by Lord Neuberger. He delivered this lecture to UCL in 2011. You can read the whole of it here, but below is a précis.
‘The rule of law is the bedrock of a democratic society… If the rule of law is to be upheld, it is essential that there should be an independent judiciary. The rule of law requires that the courts have jurisdiction to scrutinise the actions of government to ensure they are lawful. In modern society the individual citizen is subject to controls imposed by the executive in respect of almost every aspect of life. The authority to impose most of those controls comes, directly or indirectly, from the legislature. The citizen must be able to challenge the legitimacy of executive action before an independent judiciary. Because it is the executive that exercises the power of the State and because it is the executive, in one form or another, that is the most frequent litigator in the courts, it is from executive pressure or influence that judges require particularly to be protected.’
He quotes principles for judicial independence as formulated in the Latimer House Guidelines (Commonwealth, 2003):
‘We believe in the liberty of the individual under the law, in equal rights for all citizens.’
This means that there should be an ‘appropriate, independent process for judicial appointments’, guaranteeing ‘the quality and independence of mind of those appointed.’
The Lord Chancellor, being a member simultaneously of executive, legislature and judiciary, had obvious conflicts of interest. Phillips says that the LC never was ‘influenced by political considerations in his appointments’, but because it was a rather nebulous process, that couldn’t be clear. So the JAC was set up. LC still has to approve their recommendations (and can veto them), but works well in ensuring independence. SC appointments are made by an ad hoc commission of senior judges.
The job description/ person specification for SC judges is on p.6 of his talk.
The new appointments system hasn’t so far done much to change the white-middle-class-male-ness of the senior judiciary, but this will necessarily take time.
Salaries: these need to be independently set as well. They were intended to be, but the Treasury said ‘no’. The Treasury also wanted the SC to be paid for primarily from court fees – but this would make justice only accessible to the wealthy. In return for getting Treasury money, the chief executive (the civil servant in charge of the court) had to find massive savings.
50% cases are to do with public law (i.e. involve JR). ‘This makes it even more important that the Supreme Court really is independent of Her Majesty’s Government. These cases involve challenges to the legality of executive action.’
Previous to the HRA, ‘courts were reluctant to interfere with executive action.’ They based decisions on the Wednesbury principle: was the decision of administrators reasonable? The HRA means that judges now have to consider whether decisions/ actions comply with the ECHR/ HRA. This is part – but only part – of the reason for the increase in the number of JR cases. The other two reasons are 1) ‘the increased complexity of modern society which brings with it an increasing amount of executive control over the activities of the citizen.’ 2) ‘a growing recognition by the citizen and by public interest bodies of the possibilities of challenging such action.’
During the Belmarsh case, the Home Secretary (Charles Clarke) said that judges were keener on a criminal’s human rights than the good of society at large. Phillips says that this was a total misunderstanding of the judges’ position: Clarke wanted to pick judges’ brains about how to deal with ’the terrorist problem’, but this would have ‘infringed the principle of the separation of powers’.
Lord [Michael] Howard [another ex-Home Secretary] said:
“The power of the judges, as opposed to the power of elected politicians, has increased, is increasing and ought to be diminished. More and more decisions are being made by unelected, unaccountable judges, instead of accountable, elected Members of Parliament who have to answer to the electorate for what has happened”.
Lord Phillips said, ‘These statements evidence a failure to understand the role of the judiciary. When we review administrative action we do not substitute our decisions for those of the executive. We check that the executive has acted in accordance with the law, as laid down by Parliament.’
Ken Clarke said that JR grew more than he imagined, but we shouldn’t try to reverse it, as it is the law.
The right of appeal means that courts are accountable.
The Constitutional Reform Act set up a ‘complex’ disciplinary scheme for sacking judges (for misconduct). This involves the LC and the LCJ, and Phillips thinks it works: ‘judges cannot be accused of looking after their own, and yet judicial independence is preserved.’
‘But some make the point… that judges are unelected and yet take it upon themselves to overrule the elected government.’ Some think we should have a SC more like America’s, but Phillips disagrees – for it leads exactly to the politicisation of the judiciary that we need to avoid.
Phillips thinks the filming of court proceedings is a good idea.