Ep. 229 Judicial Independence and Neutrality (Update)

A few shout outs before I begin. First to Mayor, I think I'm saying that right from Eastshire College. Your students wanted me to say hi to you, so I am. Well done for the fab work that you do. Secondly, I wanted to say tar very much to my colleague of 10 years Matthew Phillips at Rygate College. Your case studies on UK Supreme Court decisions rock, and I've well and truly piled for them for this episode. And finally, a big shout out to Izzy, my cat, who underwent an ultrasound yesterday. You are a very brave kitty. Okay, onward. Hello and welcome to the A level politics show episode two to nine. Paper one is now done and dusted. And don't worry folks, if you feel you didn't do well, it's a marathon and not a sprint. You will have submitted three essays to the examiner for paper one. That's just three out of the ten answers. You'll be writing over the course of the three edXL papers. Thus you've got plenty of opportunity to make up for any answer in paper one that you weren't happy with to assist you in this endeavor. I'm focusing today on the UK Supreme Court. Check out pod number one eight one for questions on judicial power and pod one seven nine for an episode comparing the US Supreme Court with the UK Supreme Court. For today's pod, we will update episode 81 and answer the following question. Evaluate the view that the UK Supreme Court is independent and neutral. The last time such a question was posed was back in 2022. So it would be remiss of me to ignore the fact that a UK Supreme Court question is likely due and possibly one on independence and neutrality. So what is judicial independence and neutrality? Let's take a walk into key terms corner. Judicial independence refers to a court that is separate from political institutions and one which is both free from political interference and one that is willing to take on those political institutions holding them accountable. Meanwhile, judicial neutrality refers to a court that acts impartially without conscious or subconscious bias, which is able to act in a way that is empathetic perhaps to a diverse range of backgrounds and viewpoints. The higher level answers would separate out neutrality from independence, continually linking their examples and evidence back to the criteria I've just set the definitions of each term, if you like, and they may also acknowledge that a court ruling may sometimes demonstrate independence at the expense of neutrality. I seek to point that out in this pod. You could also of course make two clear decisions at the start of your essay. One on whether it is neutral and one on whether it is independent. Have a clear idea on what you think about these key terms before you go into the exam. For the purposes of simplicity for this pod, I shall be taking the direction that the UK Supreme Court is neither neutral or independent. I will divide up my pod into four sections taking two themes for each term. So for neutrality, I will look at one, the characteristics and makeup of the Supreme Court and two, evidence of political bias in decision making. For independence, I will look at the physical separation of the institution and other such measures that promote independence. And also, I will look at whether the court has been willing to take on politicians and whether politicians in the media have been willing to accept those decisions, whether they interfere in the role of the Supreme Court in its endeavor to be independent. Okay, without further ado, we're going to focus first on neutrality. As previously stated, one way to examine neutrality is to look at the characteristics of the Supreme Court judges themselves. To be free from the perception of bias, a court needs to reflect the diversity of society so that it might be seen to demonstrate empathy with the various decisions that it has to make. Diversity arguably is improving. There are now two female Supreme Court judges out of the 12. Lady similar is Jewish and has previous experience as chair of the equality and diversity committee of the Bar Council. We can also make the case that's the characteristics of the court have absolutely no bearing on court decisions. As of 2026, there has never been an openly gay Supreme Court judge yet the court was happy to rule in favor of gay spouses receiving the same survivor benefits in occupational pensions as heterosexual couples in Walker v InnerSpec 2017. However, the lack of social diversity in the senior judiciary has led to charges that the courts are unconsciously biased against certain groups, particularly those groups who often feel most let down by the criminal justice system, women and those from BAME communities. There are still very few women or members of ethnic minorities in the senior judiciary. There are only two female Supreme Court judges, all 12 are white. Former Supreme Court Judge Lord Sumpchon suggests that it may take 50 years to achieve gender equality in the senior judiciary since there are so few women judges further down the legal system. There is still a bias towards those educated privately at Oxbridge, suggesting a more establishment approach. Only one of the 12 justices attended a comprehensive school and 11 out of 12 attended Oxbridge. The average age of the court is 69. How can a court that is old male and stale truly act free from at least subconscious bias? Well, let's look at the arguments to suggest that it doesn't by looking at a second way to judge neutrality the extent of political bias in its decision making. Granted, judges are all experienced court-room lawyers who are used to serving the law and the rule of law in a neutral fashion rather than in a biased way. Judges in the UK are appointed from the ranks of lawyers who belong to an autonomous legal profession. Standards within the profession are regulated by the law society not by government. Lawyers and judges are therefore not trained by the state as in some other European countries. Their training ensures that judges merely stick to interpreting law when handing down decisions. Our Nicholson V. Ministry of Justice 2014 ruled that the ban on assisted dying could not be overturned through an incompatibility statement a process whereby the court declares that parliament is acting in a way that contravenes the European Convention on Human Rights. This case divided the court with two members of the court dissenting, perhaps demonstrating that all the 12 judges do is argue about what the law means. The court also wasn't blown away by the strength of public opinion on this matter where a November 2024 U-Gov poll showed that 78% of Britons were in favour in principle of letting someone terminate their life who was terminally ill. Yet for critics, the narrow social characteristics of UK Supreme Court judges have undoubtedly affected court decisions. Would a younger court have come to the same decision over trans rights? For example, the Good Law Project was deeply critical of what it deemed the court anti-transliction in the four women's Scotland case 2025, accusing the court of failing to take evidence from trans groups who wanted access to women's only spaces. Would millennial or Gen Z judges have ignored such things? Perhaps not. So the left argue that the UK Supreme Court is institutionally conservative because of decisions like the four women's Scotland case. Meanwhile, the right argues that the court is institutionally liberal. It serves the needs of the metropolitan elite, hence the court's two decisions on Brexit, Mila 1 and Mila 2, which delayed the UK's withdrawal from the EU. Herein lies the paradox. Maybe these two decisions do show what conservatives were described as judicial activism in pursuit of a naked political goal. Yet in arguing this case, we can also make a similar one to suggest that the court in these instances were taking on the government of the day and thus demonstrating judicial independence even if they weren't showing neutrality. It is to the key term of independence that we turn to next. For a court to be independent, you would need to have one, a physical separation of the court from politics and two, a court that is willing to take on politicians alongside a political and media class, which is willing to accept the decisions the court takes. Let's start with physical separation. The creation of the UK Supreme Court resulted in the physical separation between the legislature and the judiciary since the court resides now in a separate building from Parliament. An independent Supreme Court has therefore been established separate from the House of Lords and with its own independent appointment system, staff, budget and building at Middlesex Guild Hall. This builds on the following. Judges have already got security of tenure. That means job security to you and me, which was enacted in the act of settlement as well. far back as 1701. Appointments are for life with a retiring age at 75, and these appointments are subject to "quom ducile benne gasserine". In English, that's subject to good behaviour. Apologies to any Latin speakers out there. That means that judges can only be removed with the agreement of both houses of parliament, something that hasn't happened since 1830. Judges' salaries are guaranteed and cannot be reduced to put pressure on them. The salary is paid from the consolidated fund, not from the government coffers. Currently, the Lord Chief Justice receives approximately £290,000 per year, and the Supreme Court members earn around £280,000 per year. Finally, since the Constitution Reform Act 2005, an independent Judicial Appointments Commission, the JAC, recommends candidates for Judicial Appointments on a more transparent basis free. Supposedly, from political interference. All of this physical separation, along with the removal of politicians from the appointments process, helps the court create distance between itself and politicians. It doesn't rely on politicians paying salaries or reducing them, making appointments, and most importantly, it creates that physical space between those who make the law and those who interpret it. Yet there are some counter-arguments to this claim. There is still some political input in theory into senior appointments, despite the creation of the JAC. Formal selection, responsibility, continues to reside with the Lord Chancellor, who is appointed by the Prime Minister, and who may reject the first choice candidate suggested by the JAC. Perhaps, therefore, we need to consider whether courts are willing and able to take on politicians, and also whether politicians and the media are willing to avoid interfering with what the court does to truly analyze and evaluate whether this court is independent. Judges have openly criticised government decisions. In 2014, the Lord Chief Justice of England and Wales condemned an attempt by government to hold a completely secret trial under the 2013 Justice and Security Act. The decision relating to Brexit demonstrate a willingness not just to criticise the government, but to take it on demonstrating independence. The Gina Miller case 2017 denied the Prime Minister the right to trigger Article 50. The mechanism for EU withdrawal without the say-so of Parliament. In 2019, Prorogation Case, A.K.A. the Miller 2 case, denied the Prime Minister the right to parogue. That's to suspend Parliament for a lengthy amount of time without a vote. In RV Home Secretary 2023, which is better known as the Rwanda ruling, the UK Supreme Court decided that the Conservative government's plan to send asylum seekers to Rwanda was illegal, and that the government was thus acting ultravirus another Latin term there, which means that the government is acting beyond its power given to it by Parliament. Furthermore, politicians have sometimes accepted that the court ruling needs to be respected, further cementing the integrity of judicial independence. Starma simply accepted and welcomed the UK Supreme Court's decision on women's only spaces in 2025, claiming that the court gave clarity to the law, the so-called subjudice rules also mean that both houses of Parliament are not allowed to discuss current or impending court cases. However, politicians are only too willing, only too willing to challenge the court and limit its independence by doing so. MPs and the media openly question Supreme Court decisions. The Daily Mail ran a headline claiming that the Supreme Court charges were enemies of the people over its court decisions relating to Brexit. So that continued the criticism of the court following the Rwanda ruling despite the fact that it was an anonymous decision. Some claim this kind of exposure could prevent the court from taking tough independent decisions in the future, limiting its independence. And indeed, since Brexit, the court has arguably been less willing to challenge the government, ruling in the government's favour in its decision to deny Scotland a second independence referendum in 2022. Also, in its R Beggum, the Home Secretary, 2021 ruling, which upheld the government's decision to remove the citizenship of Shemaima Beggum, after she left the country as a teenager to join ISIS, perhaps ignoring legal scholars who argue that the action contravened international law that forbids countries from making a person stateless. Meanwhile, R friends of the Earth and others, the Heathrow Airport limited 2020, they really don't have very interesting titles. Do they, the UK Supreme Court, not compared with, say, the US Supreme Court? So you can just call it the Heathrow Airport ruling. And this ruled in favour of the government's position again, that the construction of a third runway, I can't say run-ray, run-ray, run-way, that the third runway at the UK's busiest airport was legal. So they ruled in favour of the government there. Indeed, the court is limited in what it can do in how independent it can be. It is argued that the creation of the Supreme Court was only a cosmetic exercise anyway. Indeed, the Supreme Court's powers are largely the same as that of the law-lords that preceded it, making it still limited in its ability to hold the government to account a key tenant of judicial independence. The first president of the Supreme Court, Lord Phillips, asserted that the changes in the Constitutional Reform Act 2005, which created the Supreme Court, were more about form rather than substance. Court cannot overturn an act of parliament due to parliamentary sovereignty, hence the level of its freedom from politics exists within much stricter parameters than that of the US Supreme Court. The UK Court has no codified constitution with which to compare statute law to. And so is therefore limited in its independence due to the constraints that parliamentary law places upon it, hence why the Safety of Rwanda Act effectively overturned the court's decision in RV Home Secretary 2023. The 2019 Conservative Manifesto promise to review the powers of the Supreme Court, would that promise have been included if the court would have ruled in its favor over the pro-rogation of parliament in September 2019? But I think not. The subsequent judicial review on Courts Act 2022 made good on that Manifesto promise. The 2022 dissolution and calling of Parliament act prevents the court from ruling on how parliament dissolves itself and calls a new one. The Stama government is looking at ways to limit the power of judicial review when it comes to planning applications in order to speed up house building. All of these arguments, all of these examples, demonstrate that the court has become the political plaything of politicians who do not like their power being clipped by an independent court and limiting the court's power and independence or thus boost their own. (upbeat music) Okay, so I hope you found this pod of use and that you take it to the next stage, revise the content and practice the question under time conditions. Should you want more paper two and paper three goodness between now and when you take your exams? Have a think if you haven't already about subscribing to the A-level politics shows plus, plus, plus. For just £1.99 a month, you get access to the complete back catalog of A-level politics shows. That's $229 at the time of recording. No hidden fees, just great revision. Cancel anytime, deets in the show notes. Until the next time, peeps, take care, bye-bye. (upbeat music)