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Exploring the Constitution


Is the Judiciary Independent?

Two of the key principles of western political theory are:-

The Rule of Law.  That no one is above the law.  The actions of all public officials are governed by the law and must be taken in accordance with the law and not in an arbitrary way.  Their decisions must not be taken out of self-interest or because of corruption. Laws should be clear and not constantly changing.  Everyone should have access to the courts and legal processes should be understandable, fair and operate reasonably quickly.

The Separation of Powers. The three main branches of the State, the Executive or Government, Parliament and the Judiciary should have independence from each other and that there should be a set of checks and balances between them in the way that their powers operate, so that none is too dominant. The independence of the Judiciary from the other two branches helps to ensure that the rule of law prevails.

In Britain we have not had a codified Constitution that sets out the rule of law and we have not had a clear separation of powers.  This does not mean, though, that the rule of law has not prevailed and that the Judiciary has not been independent. After the conflict between Parliament and the Stuart Monarchs, William III was made King by Parliament with the understanding that he would uphold Constitutional principles.  The Act of Settlement 1701 gave judges a measure of independence by guaranteeing their salary and that a senior judge could only be removed by a motion in both Houses of Parliament.  More important the Convention was accepted that neither the Monarch nor Parliament would interfere with legal processes.  

By the 19th Century

By the 19th century it worked in the following ways:-

The judges accepted the Rule of Law as an overarching legal principle that they would apply in common law cases.

The Lord Chancellor was the Government Cabinet minister responsible for the independence of the Judiciary and judicial appointments and saw it as his responsibility to ensure that the Rule of Law prevailed.  He argued the case for the Judiciary within Government and was normally an older and respected politician as well as having a legal background and was not someone with further political ambitions.

Contact between the judges and Government was through the Lord Chancellor. Other contacts between ministers and the Judiciary were very limited and the convention was that judges did not criticise judicial decisions.

Parliament, where many MPs were lawyers and even judges, did not criticise the Judiciary or comment on court cases but the doctrine of Parliamentary Supremacy meant that Parliament could always change the law, if it felt it necessary, and judges could not question Acts of Parliament but only interpret them.

The Lord Chancellor presided over sessions of the House of Lords and so fused all three branches of the State.  An Act of 1876 made the House of Lords the highest court but cases could only be determined by a small group of senior judges who also became members of the House of Lords.

Judicial review of decisions by public bodies was rare and the judges were very reluctant to declare these decisions to be illegal.

Changes from the 1960s

These stable relationships began to change from the 1960s as judges increasingly began to question the decisions of Government and public bodies in general through judicial review.  This reflected a change in society with people becoming less deferential and more ready to question government decisions. Britain’s membership of the European Union in 1972 meant that EU law became superior to British law and, for the first time, judges were able to rule against Acts of Parliament. The development of international law and the ability of British citizens to take cases to the European Court of Human Rights led to judges applying new legal principles which might conflict with what the Government wanted to do in areas such as anti-terrorist legislation and immigration. The Human Rights Act 1998 accelerated this process and judges were now able to declare Acts of Parliament incompatible with it, essentially forcing Parliament to revise the legislation.

Tony Blair, who is a lawyer, wanted to modernise the traditional system and also bring the spending of the Lord Chancellor’s department under control and proposed, in 2003, to abolish the position of Lord Chancellor. This led to discussions but, in the end, the Constitutional Reform Act 2005 made important changes:-

The role as the highest court of appeal was taken out of the House of Lords and a new Supreme Court was created and began operating in 2009 when a new building had been found for it. It is much better staffed than the Law Lords were. Although the Supreme Court will be responsible for disputes over the devolution legislation it is still not a Constitutional Court.

The office of Lord Chancellor was retained but the holder of the office no longer presides over the House of Lords. The office became that of a Cabinet Minister, now the Minister of Justice, responsible for legal issues but also for the prisons and probation service. This also means that there is now a Justice Select Committee in the House of Commons which can investigate justice /legal issues.

The Lord Chief Justice, who is a judge, took over responsibility for the legal system from the Lord Chancellor with control over the budget and some joint responsibility with the Secretary of State for Justice for the courts system. The Lord Chief Justice chairs a Judicial Executive board which acts as a sort of Cabinet of senior judges. There is a Judicial Communications Office to deal with the media.

A new Judicial Appointments Board deals with the appointment of judges instead of the Lord Chancellor. The process is now more open and there is the expectation that people from a wider range of backgrounds should become judges. There are also new bodies to deal with complaints against judges and the judicial system.

Meetings between the Judiciary and Government ministers now take place but are more formal. The Lord Chief Justice meets the Secretary of State from Justice regularly and the Prime Minister twice a year.

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