Ministers could be affecting judges' independence: APPG

UK Government ministers’ behaviour is risking the independence and constitutional role of the judiciary, according to the report of an all-party parliamentary group ("APPG").

Following a three month inquiry, the APPG on Democracy and the Constitution – an informal parliamentary grouping – concluded that, since 2016 (the year of the Brexit referendum):

• Ministers have, in attacking judges, sometimes failed to act in a constitutionally proper or in a helpful manner. 
• The constitutional safeguards which should ensure a proper relationship between the executive and the judiciary are not sufficiently effective. In particular, the politicisation of the offices of Lord Chancellor and Attorney General may conflict with their constitutional duties to safeguard the independence of the judiciary. 
• This has caused significant concerns amongst the judiciary. 
• It may also have created the impression that the Supreme Court has been influenced by ministerial pressure (even if indirect).  

The report also notes the “high number of instances” (seven in the past two years, a notable proportion of the fewer than 40 public law cases) in which the Supreme Court has changed its position on the law and adopted approaches, it is said, more favourable to the executive, as well as “language used in political talking points”. This has created “the troubling appearance (even if it is only an appearance) of the politicisation of the judiciary”.

MPs and peers on the group heard differing views from witnesses over whether “soft pressure” on judges from ministers, with an ongoing threat of political reform, had influenced judicial decisions. Without reaching a conclusion for themselves, they state: "the mere appearance of the Supreme Court departing from its previous interpretations of the law and, instead, adopting positions favoured by the executive, is worthy of note if not of concern".

Quoting the previous Lord Chancellor, Robert Buckland, as saying last year that it was “incumbent on the courts to correct any potential problems of judicial overreach” and he was “encouraged” by recent decisions of the Supreme Court, they add: “For senior members of the executive to express satisfaction at a perceived change of direction by the court, in the light of several years of political pressure, risks creating the impression that the executive believes that it has been successful in pressurising the court to behave more favourably to its wishes.”

Prepared with support from the Joseph Rowntree Reform Trust and the Institute for Constitutional & Democratic Research, the report 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 (law officers). 

Read the report here.