Robert Jenrick decries that over 30 judges who preside over immigration issues have previously been associated with “open borders charities”. This, he thinks, is an unconscionable breach of judicial independence. He refers in particular to Bail for Immigration Detainees, a charity for whom multiple judges have previously provided their services as a barrister, pro bono. I will not attempt to opine on the benefits of pro bono work. The principle that each and every person should be entitled to legal advice or representation is plain and benevolent. That said work is given pro bono places it beyond reproach. The accusations of misappropriation of public funds levelled at asylum hotels from similar political corners is not applicable here. In any case, to devolve into this (non)issue is to get lost in the periphery. I think his vocalisation of the the issue as he sees it tugs at a wider point. That is, an error of logic and a misunderstanding of the role of the judiciary. For ease, let us use the example of immigration, while remaining neutral on it.
Immigration is one of the hottest political issues of our day. Maybe an issue is ‘political’ if it is the topic of political discussion, or if it is an issue of public concern, or perhaps there is another similarly vague measure. One could scarcely deny that immigration is a political issue, however they choose to define it. Instead of trying to define a broad term in order to apply it to the issue of immigration, let us instead pick out from the issue of immigration one feature. A volunteer approaches, their hand rummages through my hat, and picks from it a piece of paper that says ‘divided opinion’.
In this instance opinion is divided over the appropriate treatment of the issue of immigration and thereby immigrants. Without wishing to oversimplify, on the one hand is the desire to protect and further legitimate interests of British citizens and on the other is the legal and moral obligation towards immigrants. The uptick in immigration (legal or otherwise) has become increasingly visible, concurrently with a growing clammer for the interests of the British people to be met.
The suggestion is that there are judges deciding issues of immigration and asylum that are prejudiced to allow immigrants and asylum seekers into this country. It has not been suggested that there are no circumstances in which an immigrant or asylum seeker should be allowed into the country. So it is agreed by all that in some instances a judge should allow an immigrant or asylum seeker into the country. We might deduce that the suggestion is narrower then: there are judges who are prejudiced to allow immigrants and asylum seekers into this country, when were it not for their prejudice, the person in question would not be allowed into this country.
We see then that the suggestion is actually as such: there are judges whose principles allow immigrants and asylum seekers into this country when it is within their purview to decide so. It seems to carry little sting. I might try and elucidate the underlying principle lurking in the background. In most cases when a judge makes a decision they address a particular issue on its morals as they see it. When a politician opines or campaigns they address a broad issue on its morals as they see it. Let us take a simple example, and simplify it. A popular view is that, on balance, less immigration is good for the British people. When a judge decides that, on balance, a particular person should be allowed to enter the country, this decision does not come with the hidden corollary that more immigration is better for the country. Where one may present a direct conflict, there is none.
So, where might the discontent lie? There may be a perception that the political leanings of the judges are at odds with the complainer. Through this lens, the judiciary disagrees with them. They deduce that the judges are not independent as a result. They might say that judges are left-leaning on issues, perhaps.
It does not seem we can accuse the judiciary of that. One need look no further than the recent judgement of the Supreme Court, in For Women Scotland Ltd v. The Scottish Ministers [2025] UKSC 16. In this case the court decided the narrow issue of the interpretation of the terms “man” and “woman” in the Equality Act 2010. The Supreme Court sought to retain the practicability of said Act so it could most effectively serve its role in protecting all groups from discrimination. In any case, we might pick from our hat the very same feature as we did before. The rights of the trans community is something on which there is divided opinion.
Should one fall into the trap we have seen here, they might interpret that the court is not in favour of the trans community. They might say the court is not independent because it does not agree with them. They might say the court is right-leaning. The same people are unlikely to cry out over the non-independence of the judges in this case. The decisions of judges fall both ways then.
So that it can be ensured that judges always fall on the right side of the divide (if you’ll pardon the pun), Jenrick suggests that the appointment of judges be placed in the hands of government ministers. The Lord Chancellor to be precise, rather than the Judicial Appointments Commission (JAC).
The idea of the government deciding on the appointments of judges might immediately seem to necessarily forgo independence. It does however ensure that the principles of the judiciary are aligned with the will and aims of Parliament. This is what Jenrick really wants. Independence is a misnomer.
What might we say of the alignment of the judiciary with the will of Parliament? Is it a stain on the ‘constitution’ of this country? As pointed out by David Shipley in The Critic when discussing this same issue, the JAC was formed in 2005. Before then judicial appointments lay in entirely in the hands of ministers.
Furthermore, the conception of three independent branches of state is often cited: executive, legislative, and judicial. Garden Court chambers, the home of one of the judges called out by Jenrick, points to the “long- established constitutionally important principle of the separation of powers”. These concepts are in fact quite distinct from the constitution of this country.
Parliament maintains absolute sovereignty. In the words of Tom Bingham, formerly the most senior Judge in the country, there “could be no fundamental or constitutional [or any other sort of] law which parliament could not change”, my brackets. And “the courts have no inherent powers to invalidate, strike down, supersede or disregard the provision of an unambiguous statute” enacted by Parliament. The court is not and never has been independent of the will of Parliament enacted by statute.
Where blame is lain at the door of the judiciary, it ought instead be directed back to those that wield the power to make change. That is, to Parliament. While issues of divided opinion rage on, unresolved by the democratic process, we might be thankful that we have a judiciary that remains level headed and unswayed by the white noise of political discussion.
The opening words of the unanimous judgment of the Supreme Court in For Women Scotland Ltd v. The Scottish Ministers might sum up better than I.
“It is not the role of the court to adjudicate on the arguments in the public domain…It has a more limited role which does not involve making policy.”
Instead, Parliament makes policy. As Professor Dicey stated in An Introduction to the Study of the Law of the Constitution, “Parliament can do everything but make a woman a man, and a man a woman”. In fact, in this case it seems it might even be able to do that. But only it can, through the mechanism of statute.
As Lord Sumption propounded in his 2019 Reith Lecture series, the role of the law and of judges is an expanding one. But it does not stretch so far that we may use it as a scapegoat when we as a nation have divided opinion on an issue. We must decide. And we the people, through Parliament, have the absolute power to do so.
