Italy's Nordio Reform: The Separation of Powers in the West

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Italy is heading towards a confirmatory constitutional referendum in spring 2026 that seeks to drastically reform the national justice system through the Nordio reform (named after Justice Minister Carlo Nordio). The referendum not only represents an important test for Prime Minister Giorgia Meloni, as this is the first nationwide vote since her election, but also serves as a means to reshape the principle of the separation of powers in a strong democracy like Italy, with the risk of placing the judiciary under the strict control of the executive. In analysing this reform, this article concludes that Italy is unlikely to follow the trend observed in the Western hemisphere, especially in the US, Hungary, and the UK, where the executive has recently restricted the power of the judiciary.

The Nordio reform was passed in parliament with less than a two-thirds majority. Since it changes the Constitution, it must now undergo a confirmatory referendum, which, unlike ordinary referendums in Italy, does not have a turnout quorum. If the majority votes “yes”, then the reform is confirmed and the new judicial architecture will be permanent. If the majority votes “no”, then the current magistracy organisation remains in place.

But what does the current magistracy organisation look like? Post-war Italy created a single order of magistrates, in which judges and public prosecutors share the same status, recruitment, and self-governing body (CSM). They can move from prosecutorial to judging functions over the course of their careers. This was designed to combat fascism in a post-Mussolini era by separating the judiciary from the executive and establishing prosecutors as structurally independent of government.

The new constitutional reform makes three big changes to the magistracy system. Firstly, it separates the careers of magistrates who will now choose at entry whether to become judges or prosecutors and can no longer switch between the two. Secondly, it splits judicial self-government into two, with the current Consiglio Superiore della Magistratura (CSM) replaced by two councils: one for judges, one for prosecutors. In both, two-thirds of members are randomly selected from lists of magistrates; the remaining third are chosen by Parliament from senior lawyers and law professors, again with a strong element of sortition. Thirdly, it creates a new High Disciplinary Court. Disciplinary actions against magistrates are taken away from the CSM and entrusted to a new, separate High Disciplinary Court, whose members are partly magistrates and partly elected by Parliament.

The reform represents a flagship promise of Prime Minister Giorgia Meloni’s right-wing coalition, which includes her party Fratelli d’Italia (FdI), Matteo Salvini’s Lega, and the late Berlusconi’s Forza Italia. The roots of the reform originate from within Berlusconi’s and Forza Italia’s political tradition. In fact, from the 1990s onward, Silvio Berlusconi framed his multiple corruption and fraud trials as the work of politicised "red robes". He repeatedly attacked magistrates as a "cancer" within the state. These affirmations triggered formal protests from the International Commission of Jurists in 2003 and criticism from international media. Prime Minister Berlusconi pushed through the 2005 "Castelli reform" of the judiciary (named after his Justice Minister Roberto Castelli). It introduced a partial separation of functions (not careers), in which magistrates had to choose between judging and prosecutorial work, with limited opportunities to switch between the two. It also included new rules on recruitment, training, and career progression, as well as a more hierarchical organisational structure for prosecutors’ offices. 

The original blueprint, however, went further and envisaged full separation of careers and two CSMs. This blueprint was blocked after President Carlo Azeglio Ciampi raised constitutional concerns, because the Constitution presupposed a unitary magistracy to prevent the executive from controlling criminal justice, as Mussolini did. In 2011, Berlusconi’s centre-right floated a constitutional reform which, again, proposed two separate CSMs, separate careers and a single disciplinary court. The reform was very similar to what Meloni’s government has now approved, but unlike the new reform, it never made it through parliament. 

In Support of the Nordio Reform

International media coverage has widely described the Nordio reform as the realisation of a “Berlusconi dream”: achieving constitutionally what he never fully managed: to restrict an assertive judiciary that prosecuted political and business elites.

But what are the arguments that Meloni’s government is using to convince citizens of the necessity of this reform? The most powerful argument is, without a doubt, the newly gained impartiality of judges. In fact, if judges and prosecutors share the same career ladder and body, judges may, consciously or unconsciously, internalise the prosecutorial perspective. Keeping them structurally separate is presented as a way to emphasise the judge’s role as a neutral third party. 

Moreover, impartial judges could subsequently lead to clearer accountability, an independent but more clearly structured prosecutorial service, which makes priorities more transparent, and separating councils will allow more specialised management of judges and prosecutors. 

Another powerful argument that Meloni has used is that this reform could defeat “political factionalism” within the judiciary. Meloni has been advocating the use of sortition for many council members to break the power of organised factions within the magistracy that have been embroiled in scandals over appointments. Lastly, this reform would bring Italy closer to major Western judicial models. For instance, France, along with many common-law countries, has separate tracks for judges and prosecutors, and its rule of law is considered robust. 

Returning to the issue of separation of powers, proponents of the reform, which includes many liberal and centrist parties and magistrates, argue that it strengthens this democratic principle and the independence of judges, preventing them from making decisions based on political affiliation. 

The Opposition

On the other hand, there is a strong “No front” coalition against this confirmatory referendum, whose main players are the leftist parties Democratic Party (PD), the Five Star Movement (M5S), and the Associazione Nazionale Magistrati (ANM), which is the judges’ trade union. 

The strongest argument the “No Front” proposes is that this reform will transform a unitary and independent magistracy into an executive-friendly prosecution. By separating judges and prosecutors into two careers and councils, the reform breaks the constitutional principle of a single “ordine della magistratura”. The principle was originally meant to guarantee that prosecutors, too, were shielded from the government. 

Critics fear that, over time, the organisation of prosecutors will become more hierarchical and more dependent on the Justice Ministry for careers and resources, even if the text avoids explicit subordination. More precisely, the “No front” coalition argues that the new disciplinary court and the two councils all include a significant number of lay members elected by Parliament, giving the political majority greater leverage over judicial careers and discipline. 

The UN special rapporteur on the independence of judges has also voiced concern that the reform could “increase the risk of political influence” over the judiciary. The result would be weakened collective bargaining power for magistrates as a branch of state power, with prosecutors who could be selective in choosing which crimes and politicians to pursue, eroding equality before the law. This is exactly the opposite of Meloni’s supposed aim of making the judiciary more independent.

Another major argument put forward by the “No front” is that this reform does not address the real problems of the Italian judicial system. In fact, the reform largely ignores the chronic under-funding, staffing shortages, and prison conditions that are actually responsible for Italy’s slow and often inhuman justice system. Moreover, at the moment, only 4% of magistrates switch from being judges to public prosecutors or vice versa during their careers. Consequently, the left argues that the right is pursuing a reform that affects only this 4%, rendering it largely unnecessary and of negligible practical impact.

It becomes clear that the “No front” believes that this reform erodes the principle of the separation of powers. The ultimate fear is that Italy will be transformed into an authoritarian system in which power is highly concentrated in the executive. The opposition sees making judges dependent on political power as only the first step. According to “No front”, this is an issue of valid concern for 2 reasons: first, Italy has been ruled by a dictator, Mussolini, who neglected the rule of law for 20 years. His rule ended less than a century ago. Second, there is a wider trend in the Western World towards an erosion of the principle of the separation of powers, championed by Orban’s Hungary through its supermajority.

The Nordio Reform in an International Context 

Analysing the cases of other countries, this section will investigate whether Italy’s reform will follow their path in threatening the conventional separation of powers, or whether it will actually improve the Italian justice system without threatening Italian democracy. 

The United States

Since his first term, US President Donald Trump has repeatedly attacked individual judges and entire courts, questioning their legitimacy whenever they ruled against him. The Brennan Center has compiled Trump’s statements, including references to a “so-called judge” blocking his travel ban and accusations that courts were “political”.

These attacks intensified around litigation involving investigations into his businesses, challenges to his 2020 election loss, and later, prosecutions related to the January 6th attack. Documents released by the US Congress show that, after losing the 2020 election, Trump repeatedly pressed the Department of Justice to support baseless claims of voter fraud and to help overturn state results – including efforts to install Jeffrey Clark, a loyalist, as acting attorney general because he was willing to pursue these theories. 

In his current term, concerns about politicisation have been revived by the appointment of loyalist federal prosecutors with weak formal credentials and strong partisan ties (for example, Alina Habba in New Jersey).

The Nordio reform and, more generally, the current Italian situation both differ from and imitate the US’ path.

On the one hand, the Italian right has historically been more critical of the judiciary than the left, not only under Berlusconi. Under Meloni’s government, the judiciary has blocked multiple reforms proposed by the executive, finding them unconstitutional or improper. These include, for example, the construction of a massive bridge connecting Sicily to mainland Italy and, most importantly, a centre in Albania to welcome irregular migrants, which cost €800 million. These rulings led Meloni to repeatedly attack the judiciary, questioning their legitimacy whenever they ruled against the executive. Meloni’s portrayal of the government as a victim of the judiciary has been a major motivation for pushing for the Nordio reform, raising questions about whether Meloni will copy Trump in trying to prevent new negative rulings.

On the other hand, the substantive content of the Nordio reform prevents Italy from following Trump’s pattern. While Trump’s negative attitude could materialise into control over the judiciary, as in the US, the President nominates Supreme Court justices and Attorneys General, the Nordio reform aims to prevent this. The reform does not mention which authority will nominate prosecutors, but it is unlikely to be the President, as in the US. Since voter support for both the factions is similar in the latest polls, the technicalities of the prosecutor nomination are likely be a major point of contention during the referendum electoral campaign. Since Melon may require some “No front” support, the reform is unlikely to mirror the US system.  

Hungary 

Similarly, Hungarian Prime Minister Orban has been threatening the judiciary’s independence. Since returning to power in 2010, Orbán’s Fidesz party has used its supermajority to cut the retirement age of judges, forcing out senior figures, leading to new partisan appointments, to expand and pack the Constitutional Court with loyal judges and to create new institutions, such as the powerful National Judicial Office, whose leadership is filled with allies. A senior Hungarian judge warned in 2022 that the government “constantly overreaches” its authority to influence the courts – comments that intensified concerns within the EU about a Hungarian rule-of-law crisis. As a result, the EU has initiated Article 7 proceedings and partially frozen EU funds, citing threats to judicial independence.

The Nordio reform substantially differs from the Hungarian case, as the Nordio reform came about in a transparent and democratic way. 

Firstly, Orban has used executive powers in his favour by forcing the retirement of 300 senior judges who had modified significant aspects of the Hungarian judicial system and threatened his power. In contrast, the Nordio reform has followed Italian law, being amended and modified by all parties in Parliament. It has been a topic of democratic debate within the appropriate institutions since July 2025, indicating that, while the government pushed for it, many other factions, including the liberal centre, had the opportunity to contribute their views. 

While Orban nominates allies to key institutional positions, like disciplinary and supervisory judicial boards, the exact opposite is happening with the Nordio reform. Judges within the two CSM and in the High Disciplinary Board will be chosen by lottery. As such, the Nordio reform doesn’t follow Hungary in the weakening of the separation of powers.

The United Kingdom

In the UK, while the basic institutional separation of powers remains intact, the tone of political discourse around courts has changed. 

In 2023, the Supreme Court unanimously held that the government’s plan to send asylum seekers to Rwanda was unlawful, finding that Rwanda was not a safe country and that the plan risked violating the principle of non-refoulement. The government responded with the Safety of Rwanda Bill that, according to the Lords Constitution Committee and academic analysis, effectively orders courts to treat Rwanda as safe in law, regardless of evidence, and curtails judicial review of deportation decisions – raising explicit concerns about breaching the separation of powers and international obligations. 

Prominent politicians such as former PM Liz Truss have gone further, calling for the abolition of the Supreme Court and the Human Rights Act and even suggesting leaving the European Convention on Human Rights to “regain control” from judges.

Most recently, on 10 December 2025, the UK joined other states in backing a proposal within the Council of Europe to “constrain” the interpretation of Article 3 and Article 8 of the ECHR, in part to ease deportations and offshoring of asylum seekers – a further sign of political impatience with judicial limits imposed by human-rights courts.

As in the US, the Italian right-wing attitude towards the judiciary is similar to that in the UK. Nevertheless, supporters of the reform have not made claims to abolish the Supreme Court or the Human Rights Act. It must also be noted that the UK and Italy differ significantly in their judicial systems. While the UK follows a common law system, Italy has a written constitution, which is harder to change and consequently represents a barrier towards an authoritarian drift. 

No substantial reform has been discussed in the UK, and it cannot consequently be considered as a blatant example of a weakening of the separation of powers, although the more critical attitude towards the judiciary, especially by “Reform UK”, might point in that direction. 

What’s Next for Italy?

The Nordio reform appears as a genuine attempt to improve the quality of the Italian judiciary by reducing its politicisation. The introduction of the double CSM and of the High disciplinary Court is promising, especially considering that their components will be chosen by lottery. In fact, this point of the reform could solve the major problem of political currents within the judiciary. In Italy, magistrates formally adhere to a political faction within the judiciary (left, centre, or right). It seems inadmissible that judges, who should ideally be non-partisan figures, officially choose a political stance, as this will unnecessarily bias their ruling. This is not to say that Meloni’s critique that the judiciary is dominated by the left-wing is appropriate, as judges can adhere to any sort of political faction, even right-wing. 

Concerning the separation of careers and the leftist critique that this is a reform only for the 4% of the judiciary, the reality is actually much different. In fact, what the left wing is discussing is a separation of functions, not of careers. Under the current system, judges and public prosecutors follow the same educational path, and they know each other, increasing the risk of partiality in the judge’s ruling. Moreover, the separation of careers is not only useful to increase impartiality, but it is also necessary to improve the quality of the magistrature, as judges and public prosecutors have two radically different functions: the public prosecutors investigate, and the judge rules. 

The only major point of discussion should be who nominates public prosecutors, as this is not indicated in the Nordio reform. If this authority is the Minister of Justice (a member of the executive), then the risk of an authoritarian drift reappears. Nevertheless, this point will likely be clarified during the electoral campaign.

In conclusion, the Nordio reform will improve the Italian judiciary system, increasing its impartiality, and consequently, it is not bound to threaten the principle of the separation of powers. 

Written by Edoardo Scacchia

Edited by Lisanne Koehler