Unit 2 – Judicial Neutrality and Independence. What’s the difference?

CwXwe6AXUAQsiCp.jpgHi all

I thought I would try to clear this up for those who are confused about the difference between independence and neutrality. It’s not actually difficult but some precision is needed. The best way to think about it is to think of independence as freedom of the judiciary from outside interference whereas neutrality is concerned with the judges themselves. 

So if the Daily Mail attacks the judiciary (and it has done so many, many times) then that is an attack on their independence. Similarly if politicians criticise the judiciary (as they also do, and certainly more than they should) then that is also undermining their independence.

If, on the other hand a judge makes a profoundly political and public statement then that would obviously be a challenge to their neutrality. First and foremost judges must put their own political preferences aside and apply the law, regardless of whether the decision they make has a political consequence they disagree with. In practice of course it must be difficult for highly educated judges, making decisions that have political ramifications of which they are well aware, and which they may well have moral objections to.

It’s therefore best to look at the definitions of Independence and neutrality and try to get a handle on these. If you got mixed up in the pressure of an exam a perfect answer on independence (but in which you wrote about neutrality) would score zero. The opposite also obviously applies. Hope that’s clear. 

judicial independence  – the idea that the judiciary is free of political interference and that they can make their decisions in accordance with their judicial oath “without fear or favour”. They cannot be easily removed from office, their pay is guaranteed by the consolidated fund, judicial appointments are no longer made under the PM’s exercise of patronage (instead they are made by the independent Judicial Appointments Commission) and the Constitutional Reform Act 2005 formally separated the Law Lords from legislature creating a wholly independent Supreme Court. Politicians must not comment on matters which are subject to proceedings before the courts.

Judicial neutrality – the idea here is that judges are free from political bias. They apply and interpret the law in a neutral way and have no bias or interest in a particular outcome of any case. Judges should not openly engage in party political matters and should not allow personal or political preferences to influence their decisions.

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2 thoughts on “Unit 2 – Judicial Neutrality and Independence. What’s the difference?

  1. Hi Anna

    Well the answer is that it would apply to Judiciaries first and foremost. However if we think in terms of Representation and democracy then one of the pillars of democracy is the assumed independence and neutrality of the judiciary. Then again if we think in terms of executive powers (especially through statutory instruments) then the legal process kicks in there also. And, as you say constitutions, – then checks and balances become important, and the judiciary is an important check and balance. So I would say there are multiple applications. Hope that helps…

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