What is it and why is it so important?Click to enlarge image
The independence of the judiciary is the cornerstone of a democratic society and a safeguard for the freedom and rights of the citizen under the rule of law. It means that judges should be free to make impartial decisions based solely on fact and law, without interference, pressure or influence from the state. In Scotland, the principle was emphasised as long ago as 1599 when the Lord President of the Court of Session declared that the judges were independent of the king, “sworn to do justice according to our conscience”.
Judicial independence is protected in several ways:
- freedom from interference, influence or pressure from the State through separation from government and parliament, which may be involved in disputes heard by the judge;
- restrictions on removal from office – for instance, a full-time, salaried judge can only be removed before retiring at 70 if unfit for office because of inability, neglect of duty or misbehaviour; and
- immunity from being sued or prosecuted for work carried out as a judge.
To uphold their independence, judges should act with impartiality and integrity. When they are sworn in, judges take the judicial oath: “I will do right to all manner of people after the laws and usages of this realm, without fear or favour, affection or ill-will.”
The Judiciary and Courts (Scotland) Act 2008 enshrined judicial independence in law. It introduced a duty on Scottish ministers, the Lord Advocate and MSPs to uphold the continued independence of the judiciary, barring them from trying to exert influence through any special access to judges. Read more