Judicial Independence and the Rule of Law in the UK after Brexit, by Theodore Konstadinides

The rule of law as a means of reducing the arbitrary exercise of power is at the epicentre of the future of the Polish and Hungarian EU membership, especially with reference to the requirement to comply with the principle of judicial independence as the necessary condition for all other aspects of the rule of law. Some commentators have even suggested that recent events in these Member States can be interpreted as short of EU withdrawal. But what happens to the supranational web of the rule of law and judicial independence when a Member State withdraws from the EU? This post is going to focus on judicial independence in the UK as a former Member State and briefly discuss the consequences deriving from the current state of legal affairs concerning its protection as well as highlight the ever so important role of the EU in the post-Brexit era.

In this short piece, I will start by explaining why judicial independence in the UK matters to the EU or perhaps, to put it differently, why it is in the best interests of the EU that there is a good level of judicial independence in the UK. First, I am going to focus on judicial independence within the separation of powers, specifically focussing on judges being independent of the executive government (or the legislature) in making decisions on the law. I will leave aside the other aspect of judicial independence which requires that citizens must be able to challenge the legitimacy of executive action before an independent judiciary. Secondly, I will provide some examples to illustrate that although the UK does not perhaps yet present blatantly what we call systemic deficiencies in other Member States or rule-of-law ‘backsliding’ as such, there are developments that do not sit comfortably with the notion of judicial independence and access to courts as protected by both the UK Constitution as well as commonly accepted norms of EU law.

The pertinence of judicial independence

Judicial independence is key to the EU rule of law discourse and most recently to rule of law enforcement. While Poland’s disdain for judicial independence has been going for some time, it was not until 27 October 2021 that the Court of Justice of the European Union (CJEU) ordered Poland to pay the European Commission a daily penalty of one million Euros for each day of further functioning of the Disciplinary Chamber of its Supreme Court. As documented by, inter alia, Wojciech Sadurski, this was part of wider judiciary reforms that allowed the Minister of Justice to affect the personnel, proceedings and outcomes of disciplinary cases against judges. 2020 was also the year of judicial independence in many respects: judicial independence features strongly in the Rule of Law Conditionality Regulation (mentioned about four times in its text). What is more, the Commission’s 2020 Rule of Law Report captures systemic issues not only in Poland and Hungary but also in Bulgaria, Croatia, and Slovakia that affect the independence of the judiciary. Academics have also blogged about judicial independence in the last year more than on any other principle akin to the rule of law. Beyond the vast literature, workshops, and conferences on the subject, judicial independence also featured in the FIDE 2021 Congress reports, Topic 1: national courts and the enforcement of EU law looking at the pivotal role of national courts in the EU legal order. The message is plain and unequivocal: Member States must protect judicial independence (in accordance with Article 2 TEU, Article 19 TEU and Article 47 of the EU Charter of Fundamental Rights) and show special care when they decide to change the rules governing, for instance, the appointment of judges and judicial review of executive action.

It is not a coincidence that judicial independence has become the most vital sub-principle of the rule of law. This is for three main reasons (two concerning internal scrutiny and one concerning external). First, if courts cease to be independent, there is a danger that sooner or later there will be no limits to the scope of the executive or legislative power in the state concerned. Second, the protection of fundamental rights and democratic values can be diminished where the very existence of effective judicial review, that requires independent courts, is undermined. But beyond internal scrutiny, without judicial independence, any form of external scrutiny, communication, or dialogue between national and EU courts on matters pertaining to effective judicial review and the right to an effective remedy can equally be damaged. As the late Lord Bingham explained in his seminal book a decade ago, the rule of law requires compliance by states with their obligations in international law as in national law.

A rule of law backsliding tendency to the point that it harms the judiciary as an institution can, therefore, become a significant concern for the EU, especially when it constitutes part of a more menacing and long-term enterprise to undermine the rule of law, as witnessed in Poland. Steps must be taken within the constitutional order to secure independence, but these may not always be sufficient. Next to this internal protection, external monitoring is therefore crucial. Brexit is a step towards reducing part of this external monitoring in the UK.

Why judicial independence in the UK matters to the EU?

While one does not need to possess EU law expertise to argue that it is in the best interests of the EU that its trade and cooperation partners comply with the rule of law, as a former Member State, the UK does not currently feature in the EU’s rule of law monitoring radar. For instance, the UK was not included in the latest Rule of Law report, an EU rule-of-law ‘health-check’ about the situation in each Member State published on 30 September 2020. This is the case even though the UK was still within its so-called implementation period – i.e., the period where EU law applied in its full force allowing the UK to be counted as a Member State. But then one can ask ‘why should judicial independence in a exiting or a former Member State matter to the EU?’ I will provide two substantive reasons (I am sure there are more) where it is evident that judicial independence in the UK shall be a concern for the EU:

First, if UK courts lack independence, they can jeopardise the CJEU’s jurisdiction over concepts of EU law that arise over the interpretation and application of the EU-UK Withdrawal Agreement. This is true in particular to Part 2 of the Withdrawal Agreement on citizens’ rights which provides that UK courts retain the power to send preliminary references to the CJEU about the meaning of any aspect of Part 2 of the Withdrawal Agreement for 8 years following the end of the transition period – so until the end of 2028. As such, to paraphrase from Paul Craig’s presentation on ‘Judicial Independence, the Rule of Law and Sovereignty Conflicts’, if courts in the UK are not independent they may restrict the flow of preliminary references to the EU where there are challenges to executive or legislative actions that contradict the rights under the relevant agreements.

Second, if courts are not independent, then delicate areas of cooperation, like extradition under the Trade and Cooperation Agreement reached between the UK and the EU on December 2020, can also be jeopardised. While the Trade and Cooperation Agreement is not based on mutual trust (a principle that defines EU membership), it provides for ‘cooperation based on the Parties’ and Member States’ longstanding respect for democracy, the rule of law and the protection of fundamental rights and freedoms of individuals, including as set out in the European Convention on Human Rights, and on the importance of giving effect to the rights and freedoms in that Convention domestically.’ So again, there is a strong argument why judicial independence in the UK matters to the EU and the external dimension of EU freedom, security and security.

Early symptoms of discomfort

I will move now to briefly consider some indicative examples which demonstrate that the EU’s support for an independent judiciary and recognition of its essential contribution to the balance of the system is crucial for the UK.

We are all aware of the ‘Enemies of the People’ slogan – the Daily Mail’s description of senior judges in 2016. Despite the sentiment induced by this slogan, when the executive attempted to bypass Parliament, the Supreme Court demonstrated its independence, twice intervening to establish that the executive (the junior partner) cannot pre-empt the legislature. In other words, the sovereignty of Parliament became a core justification for protecting the rights of individuals to access courts. The Miller decisions (here and here), especially the prorogation case, were followed by ministerial statements suggesting that members of the public fear the courts may not be independent, and most strikingly there were reports that the Prime Minister may have been prepared to ignore the Supreme Court’s ruling. Also, the Lord Chancellor was slow to intervene. The ‘Enemies of the People’ motto was followed by a pledge in the 2019 Conservative election manifesto to ‘ensure that judicial review is available to protect the rights of the individuals against an overbearing state while on the other hand ensuring that it is not abused to ‘conduct politics by another means’.

As such, since the Conservative party was re-elected the executive proceeded in the following ways to interfere with the powers of the judiciary.

First, since the Miller judgment highlighted the limitations of prerogative powers, the Government used its majority in Parliament as a vessel to restrain judicial independence by codifying in legislation political interference in the judicial process. If we look at the interpretation of retained EU law (including CJEU case-law) under Section 6 of the EU (Withdrawal) Act 2018 we will see that there are provisions (in subsections 5A and 5B) that allowed Ministers until the IP completion date (the 11-month ‘implementation’ period from the end of January to the end of December 2020) to issue regulations to any relevant court or tribunal on how to interpret and even depart from EU retained case-law as well as domestic case-law which related to EU retained case-law. While such regulations were not issued and courts in the UK were not pre-empted from choosing how to decide cases, one cannot help but notice the beginning of a pattern regarding the balance of power shifting away from Parliament and the courts.

The abovementioned pattern was further extended in the draft internal market bill which contained two clauses (C.42, 43) (which were dropped in the end) that authorised ministers to make secondary legislation which would be contrary to international obligations under the EU Withdrawal Agreement and NI Protocol. These clauses were further supplemented by clause 45 which provided the above secondary legislation with immunity from ‘any rule of international or domestic law whatsoever, including any order, judgment or decision of the European Court or of any other court or tribunal.’ Not only was this a purported breach of international law, it also negated a fundamental principle of the UK Constitution that bestows the judiciary with the power to assess whether regulations made by the executive are lawful.

The above two examples aim to highlight the value of judicial independence and the special constitutional importance of judicial review as a backstop against misuse of executive authority in an area where the scope of the delegated legislative exercise, which is part of making retained EU law work in the UK, is indeed very wide.

Another effort of the Government to interfere with judicial control over administrative action concerns reforming judicial review (i.e. how the courts control the legality of decision-making by public bodies in the UK). While there was an Independent Review of Administrative Law (IRAL) last year, the government’s follow up response about judicial review reform plans went further beyond the recommendations of the Independent Panel set up by the Government itself. For instance, it was mentioned that the Government would seek Parliament’s involvement in areas where the Government disagrees with the direction of the evolution of Judicial Review. In particular, reducing the reviewability of ouster clauses (i.e. clauses included in legislation that exclude judicial review of the acts of the administration) became an area of interest to the Government. Still, however, in the absence of any hard evidence from IRAL that judges indeed use judicial review as a Trojan horse to interfere with politics, the Government introduced its Judicial Review and Courts Bill in Parliament stepping back from its radical proposals about restricting judicial review, focusing instead on, among other areas, remedies. At the same time, however, the Government is reportedly planning to reform judicial review of the legality of ministerial decisions through an annual ‘Interpretation Bill’ that would assist Ministers to correct / overturn judicial decisions (against them?).

The last effort of the government to interfere with judges has been to reform the Constitution more broadly, which includes minimising external scrutiny and “updating” constitutional statutes such as the Human Rights Act 1998 (HRA), which give effect to the European Convention on Human Rights. There was an independent review of the HRA concluded in the spring, which scope focused on perennial issues including the duty under section 2 of the HRA to ‘take account’ of ECtHR jurisprudence, which has been key in enabling domestic courts to keep pace with the ECtHR and therefore avoid cases proceeding to the ECtHR. While the review was mostly constructive about the current framework (with concerns ahead as noted by Marsons), the UK Justice Secretary Dominic Raab, was quoted recently to have highlighted the need to ‘protect and preserve the prerogatives of Parliament from being whittled away by judicial legislation, abroad or indeed at home.’ This view goes beyond rejecting supranational judicial review of national law. It additionally discredits judicial review at home, a key feature of the rule of law and democratic accountability.

Concluding remarks

Robert Stevens, a British lawyer and academic who passed away earlier this year, wrote in 1999 in an article published in the Oxford Journal of Legal Studies about certain factors that have impacted judicial independence in both quality and degree. These include adherence to the EU; the growth of judicial review; and the HRA – all of them currently doubted, threatened, or displaced. Compared to Poland, Hungary, and other EU Member States becoming known for their crackdown on judicial independence, the UK Government may not be yet ‘backsliding’. It, however, follows a pathway of rule of law unorthodoxy that is gradually becoming synonymous with ‘backsliding’. Such backsliding is based on two premises: adversity against external checks as incompatible with the national constitution (Poland’s reaction to EU meddling with its affairs started with a mere reference to the principle of constitutional identity) and interference with the top courts to further degrade both internal and external checks as communicating vessels (Poland’s reformed constitutional tribunal recently ruled that parts of EU law are incompatible with the Polish constitution –  described as a ‘legal Polexit’).

I hope that the summary of the above strands in the UK demonstrates that the problem reaches beyond a mere expression of antinomy against international law. It proves that the executive in the UK has set on a course to influence or exclude in some cases the capacity of courts to decide judicial review cases. In this sense, the backsliding has begun through an attempt to identify areas in which the exercise of legal power or function is not to be justiciable by the courts and move on from there. As we are coming out of the pandemic, this is an area where care needs to be taken to ensure that the principle of the rule of law is adequately protected. This is a discussion where the input of the EU, as well as the ECHR and the Venice Commission, is vital.

Posted by Theodore Konstadinides, Professor of Law at the University of Essex and author of the ‘Rule of Law in the European Union’ (Hart Publishing, 2017). Many thanks to Yseult Marique for her comments and suggestions.

Suggested citation: T Konstadinides, ‘Judicial Independence and the Rule of Law in the UK after Brexit’, REALaw.blog, available at https://realaw.blog/?p=858.