It is a truth universally acknowledged that one should not try and bribe a United Kingdom judge.  This, as Lord Phillips stated in his lecture on Tuesday night on the topic of judicial independence, is something that we should be both thankful for and proud of. In his lecture Lord Phillips spelled out the vital importance of judicial independence in upholding the rule of law but also highlighted some of the threats such independence may face in the UK due to certain funding and administrative arrangements.

Lord Phillips began his lecture by providing a theoretical outline of the concept of judicial independence; the citizen must be able to challenge the executive via the courts, and so the courts must be protected from the executive. With regard to individuals judicial independence entails not only that judges once appointed must be immune from outside influences in making their decisions (they must ‘do right by all manner of people, after the law and usages of this realm, without fear or favour, affection or ill will’),  but also that the way they are appointed must be transparent.   Lord Phillips emphasised the efforts that have been made to improve the system by which judicial appointments are made in the UK with the formation of the Judicial Appointments Commission, but noted that it may be some time before the judiciary contains the appropriate balance in terms of gender and ethnicity.

Lord Phillips moved on to consider the concept of judicial independence in relation to institutional arrangements, and in particular the effect of the creation of the new Supreme Court on judicial independence in the UK. The removal of the highest court in the land from the House of Lords was intended to smooth out a ‘constitutional wrinkle’ in the UK system. Lord Falconer’s aim was to move the Court out of the ‘shadow of the legislature’ and ensuring its financial and administrative independence.

In practice the transition has not been so smooth. Originally, a significant proportion of the Supreme Court’s funding was intended to come from civil court fees across the United Kingdom. However, in the past two years the court services have been unable to provide the required sum and the Lord Chancellor has had to make up the difference. Last year budget negotiations for the Supreme Court took place during the economic crisis,  and Lord Phillips noted that he received a letter from the Lord Chancellor outlining ways in which cuts could be implemented in somewhat ‘peremptory’ terms. Lord Phillips argued that responsibility now lies almost entirely with the Lord Chancellor to ensure that adequate sums are made available to the Court, and such an arrangement is not satisfactory to ensure independence the Court’s independence, if the annual budget depends on what the Ministry of Justice can be persuaded to give each year.

When looking at the concept of judicial independence it is tempting to focus on the theory and constitutional rhetoric, but as Lord Phillips showed it is often the more mundane budgetary and administration arrangements that hold the key to the day to day independence of the court. Currently there appears to be a division between the Ministry of Justice and the Court as to where the loyalty of the CEO of the Supreme Court should lie. Lord Phillips unequivocally stated that he expected the CEO, Jenny Rowe, to owe loyalty to him and not the Minister, a view that he implied is not always welcome to those in government.

The difference in view between government and the Court was shown in the Today Programme’s interview with Ken Clarke the following morning. The Justice Secretary stated that while ‘I generally agree with everything Lord Phillips says’ his comments on judicial independence had generated a ‘storm in a teacup’.  With regard to funding, “I’m afraid Lord Phillips cannot be in some unique position where the court decides on its own budget and tells the Ministry of Justice and the government what it should be.”

Despite the clear divergence of views on this particular issue, Lord Phillips emphasised the support that successive Lord Chancellors have given to the law lords and latterly the new Court .  However, in a media climate which frequently portrays the power of judges as growing at a dangerous rate and which also, Lord Phillips argues, often misunderstands the constitutional role of the Supreme Court  ‘constant vigilance’ is required to ensure ongoing judicial independence.