6.2 Judicial Neutrality

What exactly is judicial neutrality? Though the judiciary is not entirely independent of Parliament and the government, it is still expected to be neutral when making legal decisions/rulings. Even if judges do have a political preference, their final rulings are meant to be free of such influences. Traditionally, senior law figures were seen to be conservative and naturally politically favourable to the Conservative Party. In this sense, it was a commonly held belief that senior legal figures in the UK were pro-Conservatives and anti-Labour, when Britain had a Labour government. If this was true, then judicial neutrality could not have existed. This was seemingly proved when the judiciary did nothing to challenge the anti-trade union legislation of Margaret Thatcher.

“The judges are the keepers of the law and the qualities they need for that task are not those of the creative law-maker. Enthusiasm is not and cannot be a judicial virtue. It means taking sides and if a judge takes sides, he loses the appearance of impartiality and quite possibly impartiality itself.” Lord Devlin, former Law Lord.

There are those who argue that it is all but impossible to be neutral at any level let alone political. Therefore, it would be unacceptable for society to view judges as having to be entirely neutral as it is simply natural for them to take sides over issues – they would not be human otherwise.

Points that have been forwarded to question the neutrality of the legal system are:

Ø Senior legal positions in Britain are political appointments. How much influence do these people have in the judiciary as a whole? If they have influence, can they, as political appointments, ever be neutral when rulings are made?

Ø As the Attorney General and Solicitor General (two of the very highest judicial figures in the country) sit in on cabinet meetings, can they both be neutral?

Ø The Attorney General supervises the work of the DPP (Director of Public Prosecutions). Can this advice always be neutral?

Ø Many judges, especially at the senior level, are from a specific background. Many are male, white, ex-public school, ex-Oxbridge etc. Many are also over the age of 40. Is it possible that they can have an open-mind over issues with such a background? For some, it is a short step from this judgement to linking judges with political beliefs that are to the right of centre. Some believe that their background may have engrained into judges a way of thinking that reflects this background.

6.3 Judicial Supremacy

It would be easy to view the senior law lords as being supreme in British politics. This would not be so, however. Any legal ruling by a judge, judges, law lords etc. can be overturned by an Act of Parliament. This means that, despite a probable time delay, the power of a democratically elected body can exercise its authority over the judiciary. Also, any ruling by judges is only effective if it is accepted by both the government and the people. At present, this is done as a convention – judges have no way of enforcing this. What if the government actively ignored a judicial ruling as it did not agree with it? What would judges do then?

Also judges themselves ruled that UK law is subservient to EU law as a result of the Factortame ruling in the House of Lords. In this instance, the judicial authorities in the UK ruled that their position at a full legal level was inferior to that of the law decided within the European Union.