Judicial Independence Inquiry: Parliamentary Report finds Ministers’ attacks on Judges threaten the constitution

A parliamentary inquiry into the independence of the Judiciary has found that Ministers, in attacking judges, have sometimes “failed to act in a constitutionally proper or helpful manner” and recent decisions of the Supreme Court “may appear” to be influenced by ministerial pressure. MPs have called for better legal guarantees of judicial independence. The report is clear that there is no suggestion of any wrongdoing on the part of judges but that our judiciary needs more support.

The report, by the All Party Parliamentary Group on Democracy and the Constitution (APPGDC), is the culmination of a four-month inquiry into the independence of the judiciary. The ICDR serves as secretariat to the APPG and the institute’s Director, Sam Fowles, acted as counsel to the inquiry.

The report made four key findings:

1.     Ministers who have publicly attacked judges by misrepresenting judicial decisions or threatened political reforms of the justice system (apparently in response to judges ruling against them) have “failed to act in a constitutionally proper or helpful manner”.

2.     The constitutional safeguards which should protect the independence of the judiciary from pressure by the executive have been eroded. In particular, the offices of the Lord Chancellor and Attorney General have become politicised. Where these officers were previously held by senior and well-respected lawyers, with the independence to speak up for judges when their ministerial colleagues acted inappropriately, they are now often held by politicians.

3.     The vast majority of judges express serious concern about the current state of affairs. 94% are “concerned” or “extremely concerned” about the government’s conduct towards the judiciary. 

4.     The government’s conduct, and the recent (alleged) “pro-executive” turn in Supreme Court decisions, may create the impression that the Supreme Court has been influenced by government pressure.

The report accordingly makes three recommendations:

1.     Foreground the independence of the judiciary in the forthcoming independent review of the Constitutional Reform Act/Supreme Court.

2.     Provide statutory guidance for ministers on their constitutional duties towards the judiciary.

3.     Provide statutory guidance on the appointment and conduct of Law Ministers.

The inquiry received both written and oral evidence from a range of senior lawyers and academics. These included Sir Jonathan Jones QC (former Treasury Solicitor and head of the Government Legal Department), Kirsty Brimelow QC (a senior constitutional lawyer), Lord McDonald QC (former Director of Public Prosecutions), Professor Cheryl Thomas QC (lead investigator for the Judicial Attitudes Survey), and The Secret Barrister (lawyer and author).

Geraint Davies MP (The Chair of the APPGDC) said: “Our fundamental values of democracy and the rule of law can only be safeguarded by our independent judiciary protecting the rights of the citizen from the state. However, our inquiry found that that independence has been under attack from ministers and in the media with their questions about the impartiality of judges risking undermining public confidence in the law itself.

We found evidence that the office of Lord Chancellor which was once a judicial safeguard in cabinet, is now more a political stepping stone from which to take pot shots at the judiciary. We also found that the courts have been subjected to ministerial and media pressure in the years following their protection of Parliament’s right to vote on the EU deal and their reversed of a prolonged suspension of parliament by the Prime Minister. This has had a chilling affect on judicial wellbeing and coincided with the Supreme Court making seven reversals of previous decisions against the government in the past two years. Therefore, our report concludes that the issues of judicial independence need to be centre-stage in forthcoming legislation. At a time that the rule of law has been broken at No 10 and the human rights of refugees is centre-stage in the media, the case for a safeguarded and impartial judiciary is of critical importance to protect our fundamental values of democracy, rights and the rule of law from erosion in the future.”

Sam Fowles, Director of the ICDR and Counsel to the Inquiry, said: “We are fortunate in this country to have an extremely high-quality judiciary who work tremendously hard on a daily basis to deliver justice. It’s right that our judges get the support and protection they need to do their jobs without fear, favour, or politicisation. It was an honour to work with the outstanding and committed parliamentarians on the APPGDC on this report and I hope their recommendations will be actioned to give judges the support to which they are entitled.”

For more information, comment requests or to receive a copy of the report please do get in touch via the contact details below.

Media contacts:

Devon Older: evoke@cornerstonebarristers.com / 07545555731

Cornerstone Barristers: clerks@cornerstonebarristers.com / 020 7242 4986

Geraint Davies MP (Chair of the APPG): geraint.davies.mp@parliament.uk

Notes to editors

More detail on the findings and recommendations from the inquiry can be found in the report, please get in touch to request a copy. 

·      The full report will be published online at www.icdr.co.uk/appg on 8 June 2022

·      Sam Fowles has argued some of the leading constitutional matters of recent years, including the prorogation case and the Post Office appeals. His book exploring his work on those cases, “Overruled: Confronting Our Vanishing Democracy in 8 Cases”, is released on 23 June. More information here: https://oneworld-publications.com/work/overruled/

·      Sam Fowles will discuss the inquiry and the early years of the Reed court with Estelle Dehon QC and Professor Alexander Horne at a live event at Cornerstone Barristers on 8 June. More information here: https://cornerstonebarristers.com/events/constitutional-decisions-uncertain-world-exploring-early-years-reed-court-its-reaction-pressures-reforms/

·      Section 3 of the Constitutional Reform Act 2005 places a legal duty on all ministers to “uphold the independence of the judiciary”. The Lord Chancellor has a further duty to defend the independence of the judiciary.

·      The is a constitutional convention that ministers and MP’s will “show due inhibition” when commenting on judicial decisions. This reflects the convention that judges will not comment on politics.

·      Since 2016 the judiciary has been subject to hostile media coverage, particularly focused on judges who make decisions which are unfavourable to the government. This includes the “enemies of the people” headline in response to the High Court’s judgment in the first Miller case.

·      Two government-ordered inquiries (the Independent Review of Administrative Law and the Independent Review of the Human Rights Act) have found no evidence that judges are overstepping their jurisdiction or “interfering in politics”.

·      The inquiry did not ask judges to comment directly so as not to put any judge in the position of making a “political” statement. The views of judges were, instead, taken into account through the Judicial Attitudes Survey and the evidence of its lead investigator, Professor Cheryl Thomas QC.

·      This is the second inquiry undertaken by the APPG on Democracy and the Constitution. The APPG’s previous report, into the policing of the Clapham Common vigil for Sarah Everard and the Bristol protests in March 2021, revealed that police had misinterpreted Coronavirus regulations and human rights law and violated fundamental rights. The substance of the APPG’s findings on the coronavirus regulations were recently confirmed by the High Court: https://www.theguardian.com/uk-news/2022/apr/11/high-court-denies-met-permission-to-challenge-ruling-on-sarah-everard-vigil

·      The evidence relied on by the APPG has all been made available online at www.icdr.co.uk/appg

·      The secretariat for the APPGDC is provided by the Institute for Constitutional and Democratic Research (“the ICDR”). The ICDR is an independent think tank founded to provide research and education on constitutional and democratic issues. More information can be found at www.icdr.co.uk/about

·      Sam Fowles, who acted as counsel to the inquiry, is a member of Cornerstone Barristers, he also serves as director of the Institute for Constitutional and Democratic Research and as a lecturer in law at the University of Oxford.

·      The APPG inquiry was funded by a donation from the Joseph Rowntree Reform Trust.