Justice Sopinka of the Supreme Court of Canada

Justice Sopinka of the Supreme Court of Canada provides criticism on this point, "As key players in the administration of justice system [the judges'] views should not be absent in fear of somehow entering the political fray on issues such as court reforms". 9 Clearly, even judges that take a less orthodox stance, limit their powers, claiming to refrain from policy issues.

In the American case Hayburn10, for example, the U. S. Circuit judges refused to "hear disability claims by veterans of the War for Independence" as they had been ordered to do by legislation enacted in Congress, stating that the "statute imposed non-judicial duties on the courts and thus violated the separation of powers"11. For the traditional doctrine states that courts "review" and do not "appeal" legislation enacted by the elected representatives of the people, since they are not Platonic philosopher-kings.

Whether they are sufficiently independent to do so and whether the principle of Parliamentary Sovereignty is established firmly enough to prevent them from crossing the fine border line and thus passing into the territory of the "elected dictatorship", will be explored in more detail later on, with reference to the implications of the Human Rights Act.

The second submission concerning judicial reticence and its relationship to independence of the judiciary, might seem superficial when viewed at first glance, but is in fact vital to the legal machinery that fulfils its side of the 'bargain' by the smooth operation of a democracy that is part of the "free world" (Lord Irvine's terminology here contains a value judgement the criticism of which would far exceed the scope of this essay).

Since a democracy by definition cannot function without the consent (or, to phrase it cautiously, the lack of point blank disapproval) of the population12, a minimum trust in those that enforce the laws of the land is required. Sir Sidney Kent commented that, "Where people look to the courts to advance or protect their rights generally they rely on an independent voice to speak for them".

The House of Lords showed their recognition of the image the judiciary by emphasising that although Lord Hoffmann's independence (Pinochet case) was beyond any question and scrutiny was not even to be considered, it was crucial that the courts not only be but also seem independent. In a way, the very fact that they cede to image requirements and thus to public opinion, implies a lack of independence. On the other hand, this was a voluntary decision and not one forced upon them by constitutional or conventional restraints.

Would they, however, have acted similarly had the outcome not been in favour of 'justice'? So far this essay has explored the question judicial independence in terms of 'external' factors and it will now turn to the 'internal' ones. These 'internal' factors may even be more crucial since they refer to an individual judge's background as well as that of the entire judicial body. The criticism put forward here is not a very original one but it must be noted as crucial to the question as to whether the UK does de facto possess an independent judiciary.

How can the average judge, an old, white, middle-class male presume to make an objective and impartial judgement? Lord Denning would take the benevolent view, responding that the citizen just has to trust in its constitution. Critics like Griffiths though, argue that judges tend to promote establishment values, eg. by imposing lighter sanctions on middle class crime such as fraud14. A further lack of independent judgement is implied by the heavy reliance on – and the possible reluctance to criticise the authority of senior members of structure as hierarchical as the judiciary, (Russell).

The only way to test such theoretical abstractions is by looking at whether the judiciary seems to conduct itself in an independent manner – which brings the line of argument back to the distinction between "review" and "appeal" mentioned earlier on. The former is about form rather than content and therefore procedural in nature (as opposed to the latter). The extent of judicial independence from the other branches of government can be measured against its ability to review governmental power, preventing "the use of arbitrary power" which is one of the main justifications of the Rule of Law15.

It is noted by H. Barnett that, "Judicial review is concerned with the legality of a decision made, not with the merits of the particular decision". Increasingly, however, the courts are relying on a concepts of 'natural justice' which involves prescriptive and not descriptive elements… This might suggest that the judiciary is approaching a political territory that has generally been declared the responsibility of government and thus subverting the ultra vires doctrine.

They are judging what 'public bodies' have done and not necessarily only how they have done it, and that by evaluating decisions against standards like 'reasonableness' (as established by Lord Greene M. R. in Associated Provincial Picture Houses Ltd. and Wednesbury Corporation [1948] 1 K. B. 223) and 'fairness'. Moreover, they are widening the framework within which they operate, by enlarging the meaning of 'public bodies' to include any body which functions like a governmental body even though it is not actually one (eg. R. v City Panel on Takeovers and Mergers ex parte Datafin Ltd. [1987} 2 QB 815).

This means that the source of power is no longer relevant, as it is a procedural condition. The use of 'natural laws' is a rather shaky firmament to base this increase in judicial independence on, as it seems to go against Parliamentary Sovereignty – although one might argue that 'fairness' is what Parliament wants.

However Parliament has attempted to create exclusion clauses, such as in Anisimic Ltd. v. Foreign Compensation Commission [1969] 2 A. C. 147, where it expressly stated that the Commission's decisions could not be "challenged in any court of law". It is a highly contentious issue despite Lord Wilberforce's idea of reasoning, (ie. "What would be the purpose of defining by statute the limit of a tribunal's powers, if by means of a clause inserted in the instrument of definition, those limits could safely be passed? ").

Fortunately, the courts can now base themselves on more legal reasoning… the Freedom of Information Act and more importantly, the Human Rights Act 1998 provide for sound legal argument. With Parliament having used its sovereignty to enact legislation which delegated power to review to the European Court of Justice, the latter has passed on this power to the national courts – thus preventing a backlog of cases in their own courts and moreover distancing themselves a bit from direct cross-fire.

They have ordered that firstly, national courts should try to interpret their own legislation as being compatible whenever possible (Case 14/83 Von Colson v. Land Nordrhein-Westfalen [1984] ECR 1891; Case 106/89, Marleasing S. A. v. La Comercial Internacional de Alimentacion S. A. [1990] ECR I-4135)16 and secondly that when this is not so, a high court can make a declaration of incompatibility (the famous Factortame case). In the UK, it is evident that this augments judicial confidence when reviewing and facilitates their independence of the executive and legislative.

This does not, however, imply that they possess the power the US Supreme Court has (as the latter is an equal partner not subjected to a doctrine of Parliamentary Sovereignty), but it does mean that the executive is given a clear signal which can then trigger a fast-track procedure for amendment of national law. Having given a brief outline of the shift in powers the UK has recently experienced as well as the parallel increase of judicial independence, the question whether this is a positive evolution (or not) remains.

An glance at what the judiciary are using this power for might be useful. In 1993, the Lords protected the freedom of speech by holding that "public bodies could not be sued for libel"17 when Derbyshire County tried to sue the Sunday Times. Moreover, Kenneth Baker was held to be in contempt of court which, by the doctrine of stare decisis, creates a precedent. Furthermore, in 1999, the House of Lords decided to stretch their powers and make new legislation by calling a gay couple a family for the sake of a tenancy law18…

These are however, examples which are easily judged morally, whereas legal judgement is more problematic, if not less contentious. Perhaps the debate on judicial independence is accessed with greater clarity when it is born in mind what the purpose, the aim that is supposed to direct judicial reform like a beacon, really is. "Judicial independence does not exist to serve the judiciary; nor to serve the interests of the other two branches of government. It exists to serve and protect not the governors but the governed. "