2.4.1 – Judicial neutrality and independence
One of the core principles of the UK’s political system is that the judiciary is neutral and independent of the Executive and Parliament. In Britain, unlike in the United States, judges are not political appointees and, indeed, judges are expected to maintain a reputation for political neutrality. As part of these principles, it has been expected that senior politicians, whether in government or opposition, do not publicly comment on decisions taken by judges. In recent years, however, this important principle has been increasingly undermined. There have been numerous occasions when senior politicians have questioned judicial actions.
These include:
2025 – In February 2025 Keir Starmer publicly criticised a court decision to grant a Palestinian family the right to remain in the UK. The comment that the judgement was “wrong” was made in Prime Minister’s Questions. The Chief Justice of England and Wales, Lady Carr, said she was deeply concerned that the Prime Minister had made these remarks publicly.
2019 – In 2019, after the Supreme Court judged in Miller vs Prime Minister that the prorogation of Parliament was unlawful, Kwasi Kwarteng then a Minister in the Department for Exiting the European Union, said that “Many people are saying — I’m not saying this — but many people are saying that the judges are biased.”
2016 – In November 2016 the Daily Mail published an article with the picture of three High Court judges who had judged that the government did not have the power to trigger Article 50 without parliamentary approval. The title of the article was ‘Enemies of the People’ with a subtitle saying, ‘Fury over ‘out of touch’ judges who defied 17.4m Brexit voters and could trigger constitutional crisis’. The then Justice Secretary, Liz Truss, was criticised for a slow and muted response which the Law Society said risked undermining public confidence in the judiciary.
Last week, Robert Jenrick faced criticism for comments he made in his conference speech about “activist” judges. Jenrick, the Shadow Justice Secretary, said that under the Conservatives government ministers would have greater involvement in the appointment of judges to stop “[judges] who blur the line between adjudication and activism”. To achieve this, he would abolish the Judicial Appointments Commission that was set-up under the Constitutional Reform Act (2005). Jenrick has been increasingly vocal about judicial decisions in recent years. It is undoubtable that there has been an Overton Window shift on what it is acceptable for an active parliamentarian to say about the judiciary. The slow and creeping politicisation of the judiciary may be the consequence of
this.