Maintaining a separation between the government, legislature and the judiciary is an important part of any properly functioning democracy. Those nations which have governments that lean on the judiciary – or see the courts as an extension of the government – are usually authoritarian in nature or dictatorships.

Constitution & Pathway to Independence

A Welsh Constitution VI: The Judiciary in a Welsh Constitution

byOwen Donovan

May 25, 2020

Constitution & Pathway to Independence

A Welsh Constitution VII: Power & Accountability in a Welsh Constitution

byOwen Donovan

June 1, 2020

Judicial independence forms part of the checks and balances that keep the constitutional powers of the executive branch of government (to enforce laws) and the legislative branch (to make laws) under control.

The UK Government has gradually attempted to limit the judiciary’s independence – aided by the right-wing tabloid press – largely because they don’t like their decisions. The latest moves by the UK Government are togive themselves the power to limit and effectively overturn judicial reviews – which is one of the key “checks and balances” in our antiquated “constitution”.

Some of the key principles of judicial independence we ought to expect to continue in an independent Wales include¹²:

• Politicians shouldn’t be allowed to interfere in judicial appointments, with limited exceptions (holding the judiciary to account more generally, confirmation hearings and alike aside).
• Politicians and the media shouldn’t comment on ongoing legal proceedings or pressure judges to make decisions one way or another – doing so being contempt of court.
• Judges are immune from defamation claims for anything they say during a hearing.
• Only the judiciary can interpret the law and decide how laws are applied in practice.
• Judges and the legal profession more generally decide sentencing policy (though lawmakers can still set proportionate boundaries – such as maximum and minimum sentences, fines etc.).
• The courts can determine that a law is incompatible with the European Convention on Human Rights – though how long this remains the case in the UK remains to be seen with the UK Government seemingly pressing ahead with plans for a “British Bill of Rights”.
• The public – through the courts – should have the right to challenge the lawfulness and constitutionality of decisions made by public bodies (judicial review).

None of this means that the judiciary is independent to the extent that judges can do whatever they like. They have to be accountable too and judges shouldn’t be allowed to “make laws from the bench”.

There are occasions where judicial decisions or independenceshould be questioned – unduly lenient sentences, for example – but there are proper channels for that such as an appeals court. Being a judge is also a position that is open to corrupt practiced like any other public office – more on that later.

1: Courts & Tribunals Judicary, (December 2021).Judicial accountability and independence. Available at:https://www.judiciary.uk/about-the-judiciary/the-judiciary-the-government-and-the-constitution/jud-acc-ind/independence/

2: Courts & Tribunals Judicary, (December 2021). Judges & Parliament. Available at: https://www.judiciary.uk/about-the-judiciary/the-judiciary-the-government-and-the-constitution/jud-acc-ind/judges-and-parliament/