ACL MAIN CONTENTS

 

 

 

 A Guide to UK Constitutional Law: Part I

   The Judiciary and the Separation of Powers

    Contents

               Question Papers (on the Judiciary and the Separation of Powers)

Main contents

Introduction

    Due to the fact that constitutional law involves the running of a country it means power split into three: the making of laws, the administration of state and the implementing of those laws. If the appointed policymaker (excutive) could use this power for his own benefit against the interests of the citizens this would mean the end of democracy and liberty (Montesquieu). In democracies, elections are the primary mechanism for disciplining public officials. But elections are not sufficient. Separation of powers is the principle that involves each of the main institutions of power working together but separately from each other. In this way they can check and balance each other in the usage of power.

    Due to the way the functions overlap in the governmental system in the UK, this realistically means an independent judiciary. This is a guide to show primarily those checks and balances in regard to the principle of the separation of powers.

    The head of the judiciary in the UK is the Lord Chancellor. His role seems to go against the separation of powers, as his role combines judicial, executive and legislative functions. This is because he is also a member of the Cabinet (executive) and Speaker of the the House of Lords (second chamber in Parliament - legislative). As a judge he is entitled to sit in the House of Lords when it acts as a final court of appeal. Even so, can we say that the judiciary may act independently in the UK?

    In Part II of this guide, human rights are also mentioned as the new rules that have come in force in the UK have a constitutional impact on the workings of the judiciary.

    Finally, as the UK does not have a constitution that can be found in one document, the Rule of Law holds even more importance. For a system of government to be democratic and just, it has to be a system based on law. The implementation of this principle is found in the workings of the courts. Simply put, "Be you ever so high, the law is above you".

© Ali Yýldýrým 2002

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Separation of Powers back to contents

Introduction to separation of powers and political accountability

    Political constitutions are incomplete contracts and therefore leave scope for abuse of power. In the UK without even such a 'contract', theoretically this is even more so true. In democracies, elections are the primary mechanism for disciplining public officials, but they are not sufficient. Separation of powers between executive and legislative bodies also helps preventing the abuse of power, but only with appropriate checks and balances. Checks and balances work by creating a conflict of interests between the executive and the legislature, yet requiring both bodies to agree on public policy. In this way, the two bodies discipline each other at the voters' advantage. Under appropriate checks and balances, separation of powers also helps the voters elicit information.

    In the UK there is arguably very little separation between the legislature and the executive. To a large extent the independence of the judiciary is seen as the guardian of this principle.

Separation of powers and checks and balances

    Separation of powers is a principle set out by Montesquieu in the 17th century. He believed that  the best safeguard against tyranny was the separation of the executive, legislature and judiciary; this had a big influence on the founders of the American constitution. Under the US constitution the Congress and President are elected separately, with powers given in the constitution that can be exercised independently, while the Supreme Court can declare actions of the President together with Acts of Congress unconstitutional. If these different parts of government are separate then they will act as a check against each other; so the executive will be subject to the views expressed in the legislature and the courts will be independent of the government.

    The principle clearly does not apply in the UK system since the executive is formed from the legislature and the most senior members of the judiciary sit in the Lords. The head of the judiciary, the Lord Chancellor also is a member of all three branches of government since he is in the Cabinet, Lords and heads the judicial system.

    While the UK does not have a separation of powers, it has certain checks and balances: the limits imposed on the exercise of power by the executive arm of government. The power of the vote: people can decide the make-up of the House of Commons in General elections. The convention of ministerial responsibility to Parliament is another balance. More effective, however, is the idea of the independence of the judiciary. It may not be separate, but is it independent enough to remain a check on competing constitutional issues?

This involves judicial review.

Also see  constitutional position of the Judiciary

Other checks and balances:

  • Public opinion and the media

  • The civil service can be regarded as a factor for political inertia; that is, they have to implement political policy decisions, and as such have a certain amount of influence over the executive which will support to some extent the status quo.

See The Times Internet Edition  Wednesday June 21st for Charter 88 critique of Blair government as 'an elected dictatorship'; ( you have to look up the 'Library' option if you are not looking at the current edition); this will give you a good up to date account of the elected dictatorship thesis. See 'Charter 88 accuses Blair of dictatorship' ,  and 'A wake-up call that Labour will ignore at its peril'.

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    What can be said about the separation of powers?

    The overlap of powers allows Parliament to make any change it wishes by Act of Parliament and helps to insure against arbitrary exercise of power. However, isn't its own authority of power arbitrary?

    There is almost complete separation of powers in the USA where governmental intransigence in controversial matters is a much bigger problem than it is here (here the judges can indulge in greater law making activities if necessary).

    There is little executive-legislature separation in the UK but much legislative-executive/judiciary separation: independence of the judiciary.

    The concept of the separation of powers was first discussed by Charles Montesquieu (after observing the British system).

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    To what extent does the UK have an imperfect separation of powers?

    Examples that show an overlapping of the three powers - thus that there is no clear separation of powers in the UK:

  • The executive controls and makes the legislature by creating peers (subject to the approval of the Queen), whips, dissolution (subject to the approval of the Queen, but note that permanent prorogation possible without her permission), prorogation (in theory this is under the Royal Prerogative but the Queen's permission is not necessary), controlling the timetable.

prorogation (this means bringing an end to a session in Parliament [normally sessions last for one year: early November to late October]. When this happens Parliament terminates business pending - with the exception of the judicial work in the House of Lords.)

  • Part of the legislature (the government ministers) form the executive.

  • The legislature controls the judiciary by removing senior judges (in the name of the Lord Chancellor).

  • The executive (the Lord Chancellor) controls the judiciary by removing (or perhaps worse not removing) junior judges.

  • The judiciary do not have their salary voted on by Parliament

  • The judiciary reviews the activities of the executive.

  • Paid judges cannot be in the Commons.

  • The executive (the Lord Chancellor (with the Prime Minister in appointing law lords)) appoints judges.

  • The executive makes treaties, which have a degree of legislative influence (though not true legislative force).

  • The judiciary (as Coroners or magistrates (licensing, etc.)) undertake executive activities.

  • The executive (the Lord Chancellor) sits as a judge.

  • The executive (the Lord Chancellor) sits as legislator.

  • The executive (the Home Secretary) refers cases to the Court of Appeal and can grant Royal Prerogative of Mercy.

  • The executive (the Home Secretary) sets sentences of detention during her Majesty's pleasure.

  • The monarch is the fountain of justice and is in theory present in court, has prosecutions in her name, appoints judges and peers (who thus form part of the legislature). She also grants all laws by giving her royal assent. Royal Proclamations such as are made when a new territory is conquered/taken over to set up a new system of law where none existed are a more real legislative power as her similar powers to make law by Order in Council. As part of the executive she heads the armed forces and appoints and dismisses ministers (but dismisses only the Prime Minister in person). In times of war the Crown may requisition ships (as in the Falklands) and enter private land to repel invasion. She 'makes' all foreign treaties. (Remember though that all this is almost never done by her personally anymore.)

  • Parliament is the 'High Court of Parliament'

  • The Speaker of the Commons who has theoretical legislative powers (by convention only exercised where there is a tie, and then in favour of the status quo) is part of the Privy Council and as such has theoretical judicial powers.

  • The executive (through the whip system) controls the legislature.

  • Tribunals are created by Acts of Parliament and have both judicial and executive/administrative powers.

  • The judiciary makes laws (common law proper and judicial creativity in interpreting statute).

  • The Queen is effectively a part of all three branches of government - she is the fountain of justice and she appoints ministers and makes laws (although not in person anymore).

  • The Attorney General (or the Solicitor General) does nolle prosequi and advises the government on legal matters - this is a member of the Executive interfering with the judiciary and it is not a breach, as such, of the separation of Powers.

nolle prosequi = 'to be unwilling to prosecute'. A procedure by which the Att.Gen may terminate criminal proceedings on indictment [in the Crown Court] (leave of court is required in summary trial [Magistrates]). The procedure is most commonly used when the accused cannot be produced in court to plead or stand his trial owing to permanent physical or mental incapacity. It sometimes used when the Att.Gen thinks that a prosecution would not be in the public interest. His decision is not subject to any control by the courts. However, a nolle prosequi is NOT an acquittal and does not bar further prosecution.

  • The Director of Public Prosecutions can take over private prosecutions, which is a quasi-judicial power.

  • Local Government has legislative and executive powers, which are created by the executive in Parliament by Royal Charters.

  • The legislature grants the executive legislative powers by delegated legislation.

  • The executive makes laws (or rather gives assent to them) in Europe (but see below)

  • The executive appoint bishops, who have legislative powers.

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The Parliamentary Control of the Executive Bill

The Parliamentary Control of the Executive Bill will make important changes to the present separation of powers. It is a Bill that demonstrates that the so-called 'Royal' Prerogatives are, in reality, no such thing; Parliament being free to make them into parliamentary prerogatives.

The Bill was formerly called the Crown Prerogatives (Parliamentary Control) Bill, and its long title although not forming part of the new Bill is perhaps worth quoting:

"Whereas Crown prerogatives go back to the middle ages through periods of history extending well before and long after the universal adult suffrage was introduced and have no democratic legitimacy;

And whereas these Crown prerogatives are, by long-established custom and practice, now almost all exercised solely by the Prime Minister without any legal or constitutional requirement for the House of Commons to be informed…"

"And whereas these same Crown prerogatives are used by Ministers of the Crown in the European Union to give their assent to European legislation which has legal effect in the United Kingdom and may supersede statutes passed by the United Kingdom Parliament, which are in conflict with it;

And whereas the Crown prerogative of making war, without the prior consent of Parliament, can endanger the peoples of these islands without the prior consent of their representatives in the House of Commons;

And whereas the powers of patronage vested in the Crown also allow the Prime Minister of the day to appoint archbishops and bishops, judges, peers, Ministers … and make many other important public appointments…

And whereas the same powers, exercised in the form of advice to the Crown, Can [sic] secure the dissolution of Parliament before the end of its statutory life."

The Control of the Executive Bill requires many of the prerogatives to be made subject to the consent of Parliament.

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 The Lord Chancellor

The Lord Chancellor: Constitutional position and responsibilities.

Executive powers:

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member of Cabinet

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is government legal adviser

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minister in charge of the Lord Chancellor's department (12,000 staff)

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appoints and dismisses judges and JPs (Justices of the Peace)
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the present Lord Chancellor wrote the Labour party manifesto

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He chairs four Cabinet committees on the constitution

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arranges the judicial business of the House of Lords and Privy Council

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chairman of the rules committees for the Supreme Court

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chairman of the rules committees for the Crown Court

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responsible for the court service (which incidentally excludes the magistrates' courts)

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has supervisory responsibilities over the legal aid scheme

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supervises the magistrates courts committees

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appoints ACLEC (Advisory Committee on Legal Education and Conduct)
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appoints the Legal Services Ombudsman

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is responsible for the Land Registry

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is responsible for the Public Record Office

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is responsible for the Official Receiver

Legislative powers:

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sits in Lords

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speaker of Lords (lacks the powers of the Commons' speaker)

Judicial powers:

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can sit as a judge

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will be the judge in future Scotland -England disputes

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he has an important role under the Human Rights Act.

It has been questioned whether it is prudent to vest so many judicial functions in a political figure - should a political animal have the power to pass judgment on people's liberty. Furthermore, many issues of law are inherently political, and it may be thought (even if it is not the case) that the Lord Chancellor's politics are informing his decisions.

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    The Judiciary in the UK

The Constitutional Position of the Judiciary in the UK

Introduction

    Judges interpret and uphold the law, as laid down in statutes by Parliament. They are also at present involved in framing laws. The most senior Judges, the Law Lords, sit in the second chamber of Parliament, the House of Lords, and can seek to influence Bills as they pass through Parliament. In the early 1990's, the then Home Secretary Michael Howard's Bill to reform sentencing rules was heavily criticised by the Lord Chief Justice, Lord Taylor, as it went through the Lords. In addition, judges contribute to the system of common law when they make decisions in the courts in specific cases (interpreting statutes). Decisions made in higher courts are binding on lower courts, and set a precedent for future cases, that judges can draw on (this is the doctrine of Precedent).

    At the head of the judiciary is the Lord Chancellor (LC), who is appointed by the PM. Distinct from the Lord Chancellor are the government’s own Law Officers, the Attorney General and the Solicitor General, whose job is to handle legal cases that involve government departments.

    Although the Chancellor is appointed by the PM he is non-political in the way he does his job which is concerned with:

  • - appointments of judges (in theory the Queen appoints them on the advice of the LC)

  • - advising the government on reform of the legal system

    The UK does not have a codified constitution and so has no constitutional court; judges cannot declare actions or laws unconstitutional but they can declare actions, including those of ministers, unlawful. This can happen in specific cases that involve public bodies and individuals (called case law: see M v Home Office [1992] QB 270 CA as an example), or in cases where judges are asked to clarify the law in principle.

After 2000 the UK now has the Human Rights Act in operation which will transform the system of individual rights. This could bring judges more into conflict with the government. See new system of rights.

The Constitutional Position

    As mentioned before, the judiciary is the arm of 'government' (in the broad sense of the word) whose job it is to interpret and uphold the law.

    The UK system does not have a constitutional court, and so the British judiciary has less scope for being overtly political. Although as we shall see, this does not mean that there is not scope for the judges to have political significance, in particular through the process known as judicial review.

    Judges in the UK are non-political in another sense in that they are appointed purely on legal merit rather than their political leanings as is sometimes the case in the USA.

    However, Judges have become more involved in politics in Britain for a number of reasons:

1     The growth in judicial review cases involving government departments: This was partly due to the increasing volume of legislation. In the 1980s central government increasingly resorted to changing the law to implement policy, for example in the reform of local government, and the local councils used the courts to obstruct those policies, the Poll tax for example.

2     The increasing use of senior judges in judicial inquiries, such as Scott (about ministerial responsibility) and Nolan (political 'sleaze').

3     The increasing public scrutiny of court cases and trend towards a more litigious society.

4     Growing issue of individual rights and the ability of the courts to protect them: Increasing concerns have been raised by such cases as the failure to get the ban on trades unions at Government Communications Headquarters lifted in 1985 in Margaret Thatcher's regime: Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 (the GCHQ case): even though it did set the reveiwing of the exercise of prerogrative powers for the public good on a new footing.

    This trend will arguably increase with the implementation of the Human Rights Act which came into force in 2000. See New system of Rights

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Judicial Independence

    The UK does not have a separation of powers between the main arms of government. The Head of the Judiciary, currently Lord Irvine, is a member of the Cabinet and a close friend of the Prime Minister, so the question arises as to how the courts are  able to act impartially and not biased in some way towards the government;  for this is what judicial independence means. There are a number of safeguards to preserve their independent position:

Judges are appointed on merit not on political favour

    The Law Lords (12 including the Lord Chancellor) are appointed by the PM on the advice of the Lord Chancellor. Below that the appointments are by the Lord Chancellor.

    High Court judges and above are appointed by the LC with invitation, from the ranks of Queen’s Council (with solicitors now eligible for the High Court) and from the ranks of circuit judges. The recommendations of existing judges are the basis for appointment. QCs are assessed by judges when they appear in court; barristers who don’t ‘take silk’ (get to be a QC) can become recorders and circuit judges. However, posts for High Court judges are not merely by invitation now. The LC for the first ever placed an advert for a post to High Court Judge in The Times in 1998.

    For barristers to become QCs they must apply to the Lord Chancellor’s office, and it is the view of judges again that prevails, and only 1 in 7 applications is successful.

    The changes of February 1998

    Some judicial posts will now be advertised, from circuit and district level up to High Court level. This to involve formal interviews and a lay assessor (someone outside the Lord Chancellor’s Office). The first of these ads were quite radical in saying that candidates would be considered irrespective of race, gender or sexual orientation. The idea is to reduce the mystique involved in the present process and open up the senior ranks of the judiciary to a wider range of applicants.

    At present there is a lot of debate about the need for an independent element in the appointment of judges, or a system that separates them more from the executive and legislature.

Security of tenure (job)

  • - judges hold their posts ‘during good behaviour’ (Act of Settlement 1700)

    So failing criminal conviction they can only be removed (at High Court level and above) by a resolution of both Houses of Parliament. The retirement age was 75, recently lowered to 70 in 1994. However, there was a case in 1998 of a High Court judge,  Mr Justice Harman,  resigning after being criticised by a Law Lord reviewing one of his cases.  The case was Goose v Wilson Sandford, in which Mr Justice Harman took 20 months to reach a decision and then did so without his original trial notes which he had  misplaced.

Judge's Pay

    This is fixed by statute in relation to the senior grades of the senior service and reviewed by the Top Salaries Review Body. Parliament generally accepts the recommendations of this body.

Self-regulating professions

    The Law Society and the Bar Council are the professional associations for solicitors and barristers, from whom judges are drawn, and they set their own professional standards, as well as put their own views to government on the functioning of the judiciary. This creates a strong independent culture in the judiciary.

    The above factors show the judiciary from being independent from the executive and free to criticse the 'government' (in the narrow sense of the word). Examples include in 1995 attacks on Michael Howard over reform of the criminal justice system from senior members of the judiciary eg the former Lord Chief Justice Lord Taylor’s attack on minimum sentencing, and Lord Donaldson’s attack on the 1997 Police Bill.

Parliament and the courts

    Parliament does not comment on cases before the courts, and Parliament is self-regulating under a principle called parliamentary privilege. In 1993, William Rees Mogg brought a case that sought to question the legality of the Maastricht Treaty, arguing that Parliament could not give away its own sovereignty (supremacy). He lost the case, as judges cannot comment on the merits of legislation only interpret it. However, should judges be in the Lords; the European Court of Human Rights has criticised this system in Guernsey. See McGonnell v UK, European Court of Human Rights, 8 February 2000 (also in Resources)

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The Appointment of Judges

See also The Bar council

    At the head of the judiciary is the Lord Chancellor, who is appointed by the PM.

  • Distinct from the Lord Chancellor are the government’s own Law Officers, the Attorney General and the Solicitor General, whose job is to handle legal cases that involve government departments.

  • Although the Chancellor is appointed by the PM he is non-political in the way he does his job which is concerned with:

  • - appointments of judges (in theory the Queen appoints them on the advice of the LC)

  • - advising the government on reform of the legal system

    High Court judges and above are appointed by invitation from the ranks of Queen’s Council (with solicitors now eligible for the High Court) from the ranks of circuit judges. The recommendations of existing judges are the basis for appointment. QCs are assessed by judges when they appear in court; barristers who don’t ‘take silk’ (get to be a QC) can become recorders and circuit judges.

    For barristers to become QCs they must apply to the Lord Chancellor’s office, and it is the view of judges again that prevails. Only 1 in 7 applications is successful.

The changes of February 1998

    Some judicial posts will now be advertised, from circuit and district level up to High Court level. This to involve formal interviews and a lay assessor (someone outside the Lord Chancellor’s Office). The first of these ads were quite radical in saying that candidates would be considered irrespective of race, gender or sexual orientation. The idea is to reduce the mystique involved in the present process and open up the senior ranks of the judiciary to a wider range of applicants.

    At present there is a lot of debate about the need for an independent element in the appointment of judges, or a system that separates them more from the executive and legislature.

    Some MPs want a judicial appointments committee that would include lay people to encourage more representative judges. This is a very contentious area since it raises the issue of judicial independence (judges should not it can be argued be seen to be representative in the way that elected representatives are).  Also some want prospective Law Lords to be vetted by a Select Committee of the Commons. The Pinochet case has high lighted some of these issues: Judge Hoffman sat in the original hearing and it turned out that he had an interest in Amnesty International that was lobbying for extradition; Hoffman was therefore  'a judge in his own court' - (he would not have been objective).

    March 2001, The Lord Channcellor Lord Irvine introduced a new system of Commissioners for Judicial appointments to oversee judicial appointments. Quite a modest reform really compared to the alternative proposals above.

See The Times Internet Edition  Monday October 18th, 'Best Judges will be lost' under US-style reforms.

See The Times Internet Edition Tuesday September 28th 'Law Society will boycott judges' old boy network'.

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Judicial bias?

See also Judicial Studies Board

There are two broad views, those of:-

    Lord Denning: judges cast aside all prejudices when appointed and act independently; you have to trust somebody in the constitution. This is a rather benevolent view of judges.

    Professor Griffiths in his writing 'The Polictics of the Judiciary' 5th ed, Fontana (1997): Judges are by nature pro establishment because of their background - they are mostly white, middle-classed and male. They have establishment values. So their notion of the public interest leans towards the establishment.

Allegations of bias often refer to the following:

    This is secretive and largely by 'invitation' and at least it suggests a 'club' atmosphere rather than a transparent one, and some would say keeps a distance between the judges and ordinary people which does not create a feeling of objectivity; this is arguable clearly. However, reforms have been taken in this area.

  • Background of judges

There are very few black or female senior judges.

See also gender and the judiciary

  • Sentencing

    Middle class crime e.g. fraud treated more leniently than other offences. It is feared that members of the ethnic minorities are more likely to be given custodial sentences.

    See Lord Chancellor's Press notices on latest guidelines issued to new judges on dealing with ethnic minorities. This is a guide to be incorporated into the training  of judges (partly the job of the Judicial Studies Board).

    'The Judicial Studies Board provides training and instruction for all full-time and part-time judges in the skills necessary to a judge. An essential element of the philosophy of the JSB is that the training is provided by judges for judges.'

28/09/1999 LAUNCH OF THE EQUAL TREATMENT BENCH BOOK

For the response of one judge to this see  The Times Internet Edition Back Issues, Friday, 1st October 1999 'Judge criticises horrid political correctness'.
 

  • Moral issues

Some rape trials have revealed unsympathetic male attitudes eg:

  • 'When a woman says no she does not always mean it' Comment of a Crown Court judge in rape trial.

  • A youth ordered to pay for his female classmate to go on holiday as compensation for raping her.

  • Police evidence

    Police evidence generally accepted freely, although in law their position in court is no different then any other witness.

  • National security

    The suggestion here is that judges are biased towards the government case on matters of national security: In 1983, a young clerk who worked for the Ministry of Defence, Sarah Tisdall, was prosecuted for sending to the Guardian newspaper documents revealing when American cruise missiles would arrive in Britain. The documents disclosed how the government intended to evade parliamentary questions about the arrival of the missiles. Tisdall was given a six month prison sentence.

    In 1984, a much more senior civil servant, Clive Ponting, was prosecuted for a similar offence: he had sent information to a member of Parliament which demonstrated that ministers were giving misleading information to parliament about the sinking of the Argentinian ship, the 'General Belgrano', during the Falklands war. Ponting argued that he had a duty to leak this information. However, the judge ruled, controversially, that the interests of the state were identical with those of the government of the day. Allthough there was no legal doubt that Ponting was guilty, the jury acquitted him, presumably recognising the moral force of his argument. Thus the judge had directed the jury to convict him, but the jury actually ignored the advice.

    That was the last major official secrets prosecution: since then, the government conspicously avoided such prosecutions and began using the civil law of "confidence" instead [e.g. the "Spycatcher" case against Peter Wright, the author of a book on the British secret services].

Property rights versus civil rights

  • Property rights or the interests of capital given more protection under the law than individual rights.

  • Trade unions have often felt at a disadvantage compared to employers in the courts.

Miscarriages of justice

    For example the Birmingham 6 (Callaghan (1989), McIlkenny (1991) 93 Cr. App. R 287) and Guildford 4 (Armstrong). These cases relate to the system of evidence gathering by the police.

Judges have become more politicised (see also question paper on this)

    The example of the clashes between Michael Howard and the courts in 1995 may show this. However, might this also not indicate that the judiciary are independent to criticise the executive also?

    Lord Justice Taylor’s response in the Lords to Howard’s call for mandatory sentencing and Lord Justice Taylor’s response that detection was a better deterrent. Judge Hoffman and the Pinochet extradition case in 1999 is another example.

Conflicts of interest

    Judges are obliged to declare any interest in a case (Hoffman) but there is no register of interests, and clearly the Hoffman case shows the weaknesses of the present system.

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Question Papers

Is the Judiciary getting more and more politicised, and does it matter?

Also see: Lord Irvine of Lairg  The Lord Chancellor, 
"Principle and Pragmatism: The Development of English Public Law under the Separation of Powers" Friday, 18 September 1998, Lecture at the High Court in Hong Kong

    The judiciary in Britain is non-political in the sense that they are appointed on merit and have safeguards to protect their independence. These include, self regulating professions, pay fixed by statute, security of tenure, the convention of parliamentary privilege, and the lack of a constitutional court. However, at the same time, at the head of the judiciary is the Lord Chancellor, who is appointed by the PM and is a senior member of the Cabinet. 

    Although the Chancellor is appointed by the PM he is non-political in the way he does his job which is concerned with:

- appointments of judges ( in theory the Queen appoints them on the advice of the LC)

- advising the government on reform of the legal system

    Judges in Britain interpret and uphold the law, as laid down in statutes by Parliament. They are also at present involved in framing laws as the most senior Judges, the Law Lords,  sit in the second chamber, the House of Lords, and can seek to influence Bills as they pass through Parliament. Michael Howard's Bill to reform sentencing rules was heavily criticised by the Lord Chief Justice, Lord Taylor, as it went through the Lords.  Britain does not have a codified constitution and so has no constitutional court; judges cannot declare actions or laws unconstitutional but they can declare actions, including those of ministers, unlawful. Now, after 2000 the UK has the Human Rights Act in operation which will transform the system of individual rights. This could bring judges more into conflict with the government. See  new system of rights.

    The job of the judiciary is to interpret the law as laid down by Parliament and as embodied in the common law, those principles of common justice upheld by the courts traditionally, such as reasonableness and fairness. The principle powers of the courts in relation to the executive is that of Judicial Review. In the context of the study of government this is the process by which the courts question the legality of ministerial actions or those of statutory bodies. The main cases start in the Queen’s Bench Division of the High Court. The Court can decide whether an action is legal in terms of the Act (or Parent Act in the case of statutory instruments) but cannot in normal circumstances question the legality of the Act itself. The exception to this is in the area of EU matters; the landmark case is Factortame, 1990. Jack Straw in March 1999 sought a judicial review over early release of IRA terrorists. The result of this process is the body of case law known as administrative law.

    There has been a marked increase in recent times of judicial review cases, although most concern immigration (75%); nevertheless there has been a greater willingness generally for challenging the decisions of government departments and hence Ministers. In 1987 the Government published a guide for ministers in relation to the courts, called 'The Judge Over Your Shoulder'. This is evidence in itself of the increasing 'threat' posed by the courts. In terms of significance there have been some landmark cases that have had real political significance. Some examples are:

  • Factortame case: A High Court judge held up the implementation of the Merchant Shipping Act 1988 pending referral to the European Court of Justice, 1990. The UK government had tried to prevent Spanish trawlers being registered in Britain; the trawlermen argued it was in breach of the 1986 Single European Act. European Court of Justice ruled that an Act of Parliament could be suspended pending its review by the European Court.

  • In 1993 Lords ruled that public bodies could not sue for libel following Derbyshire County Council’s attempt to sue the Sunday Times, and so protecting the freedom of the Press.

  • Lords found Kenneth Baker in contempt of court in his treatment of illegal immigrants: M v Home Office [1992] QB 270 CA. "The most significant constitutional ruling since John Wilkes obtained damages against a minister in the 18th century": Michael Bellof - constitutional lawyer.

  • In 1995 the High Court ruled that the Foreign Secretary Douglas Hurd had acted unlawfully in using the overseas aid budget to encourage arms sales to Malaysia.

  • In 1996 the High Court ruled that the Prison Service had acted unlawfully in calculating sentences, and so some prisoners were released and able to claim compensation.

  • In 1997 Lords ruled Michael Howard, the former Home Secretary, broke the law when he increased the minimum sentences on the two boys who murdered James Bulger.

  • In 1999 Lords ruled that two Pakistani women should be given asylum in the UK for fear of ill treatment by relatives in Pakistan.

  • In October 1999 the House of Lords ruled that a homosexual couple could be described as a family for the purposes of tenancy law; enables partners in gay relationships to carry on a secure tenancy agreement as if a heterosexual couple.

  • In October 1999 Lords ruled that the British Government was liable to pay compensation to Spanish trawlermen for restricting them from buying British fishing quotas under the Merchant Shipping Act 1988.

  • In February 2000 the High Court ruled that the Home Secretary had to release the Pinochet medical file.

"Without any formal change to the constitution, a significant measure of responsibility for scrutinising the conduct of government has gradually passed from the legislature to the judiciary."   Lord Irvine.

    Two factors are of particular significance, says Lord Irvine:

    First the increasing intervention by government in society, by passing additional Acts of Parliament.

'It is the rise of this spirit of interventionism which played an important part in the parallel growth of administrative law. If the State was to exercise greater control over individuals, the courts recognised that it would be necessary to develop some safeguards by, for example, requiring government to adopt fair decision-making procedures. Thus the courts began to create a body of administrative law capable of regulating the evolving relationship between British citizens and the burgeoning state.' (Irvine) A good example of this is given by Lord Irvine, that of Lord Denning and his extending of family law rights, especially for women, when in the Court of Appeal.

    A second important factor has been the decline in Parliament's effectiveness in scrutinising the executive. Since the majority of members of the House of Commons are also members of whichever party forms the government of the day, and in light of the highly disciplined nature of all modern political parties, the capacity of Parliament to hold the executive to account is necessarily limited. It is against this background that the courts’ development of administrative law can, once again, be seen as a pragmatic response to a pressing constitutional need. As Lord Mustill put it, "To avoid a vacuum in which the citizen would be left without protection against a misuse of executive powers the courts have had no option but to occupy the dead ground [left by Parliament] in a manner, and in areas of public life, which could not have been foreseen 30 years ago." 

    Therefore one can make a good case for the view that the courts have become more political in responding to the increased powers and role of the executive arm of government as Irvine indicates. 

Judges have become more politicised in terms of their clashes with government 

    For example, the clashes between Michael Howard and the courts as already mentioned, and the greater outspokenness by both senior members of the judiciary and politicians on their respective roles. For example the open argument between Michael Howard and Lord Taylor over mandatory sentencing:  Lord Justice Taylor’s response in the Lords to Howard’s call for mandatory sentencing was that detection was a better deterrent. Also Michael Howard openly criticised some court decisions against him as 'excessive judicial activism'. One can also add to this the current debate between politicians over the courts' ability to protect ordinary citizens from burglars as in the Tony Martin case. 

    This is of concern because it can undermine public confidence in the judicial process, if politicians are seen to be dismissive towards the courts; and worse, it can lead to less respect for the rule of law, and the rights of others. 

    Also judicial independence in the British constitution depends to a large extent on the goodwill of governments; unlike other systems that have an entrenched constitution. The executive through the Lord Chancellor's department, has a central role in the selection of judges and workings of the court system, and ultimately, the government can change the law. As far as individual rights are concerned these are more protected since October 2000 when the Human Rights Act took effect, but the fact remains that in the UK system of government, it does not inspire public confidence in the judicial process if ministers are seen to be at odds with the judges.

    The Human Rights Act 1998 changes fundamentally the system of individual rights in Britain. It means for the first time judges will have the powers to apply the principles of the European Convention in British courts, rather than before October 2000, cases having to be taken to the European Commission on Human Rights in Strasbourg. It does this by incorporating the 1951 European Convention on Human Rights into British law.

    This is quite different from the traditional approach to rights in the UK which has been to provide specific protection within a general framework of residual freedoms; judges now have the power to interpret and apply general rather than very specific rights.

    There is a possibility of conflict between judges and Parliament, since judges are going beyond merely interpreting the law; they can by implication comment on the wider implications of Acts of Parliament.

    Judges are not able to stop the implementation of Acts as in Canada, as this was thought incompatible with Parliamentary Sovereignty, but they are able to strike down secondary legislation (statutory instruments) and they are able to declare existing Acts of Parliament incompatible with the Convention; the government would then move to change the law, but they would not have a statutory obligation to do so. This is similar to the New Zealand system.

    There is a fast track system of changing the law in Parliament so as to comply with court rulings. If the Government refuses to change legislation, an individual will still be able to take the case to the European Court of Human Rights at Strasbourg.

    All public authorities, such as the police and local authorities, are legally bound to comply with the Convention. If a court judges that they have done so, it may quash their decisions.

    Ministers introducing legislation will have to make a declaration that the measures comply with the Convention's central provisions.

    The likely consequences are that since ordinary citizens will now have more legal remedies for grievances in the courts, then judges will be brought more into the political arena as they will be given more discretion in individual cases to interpret the provisions of the Convention. Since they are not elected nor accountable politically, this might be regarded as undesirable; at present judges can always argue they are merely applying Parliament's will, but in the future this will be less valid, and this may be risking further, the public's confidence in the judicial process.

To what extent does the British Constitution adequately safeguard the independence of the judiciary?

Judicial Independence

    The UK does not have a codified constitution that provides for separation of powers between the main arms of government, and the Head of the Judiciary, currently Lord Irvine, is a member of the Cabinet and a close friend of the Prime Minister, so the question arises as to how the courts are able to act impartially and not biased in some way towards the government. This is what judicial independence means. There are a number of safeguards in the British Constitution to preserve their independent position.

    Judicial independence is maintained by a combination of procedures and conventions relating to their terms of employment and relations with the other arms of government.

  • Appointed on merit

    Law Lords (12 including the Lord Chancellor) are appointed by the Queen on the advice of the PM and the Lord Chancellor. Below that the appointments are by the Lord Chancellor.

    High Court judges and above are appointed by invitation from the ranks of Queen’s Council (and, with solicitors now eligible for the High Court) from the ranks of circuit judges. The recommendations of existing judges are the basis for appointment. QCs are assessed by judges when they appear in court; barristers who don’t ‘take silk’ (get to be a QC) can become recorders and circuit judges.

    At present there is a lot of debate about the need for an independent element in the appointment of judges, or a system that separates them more from the executive and legislature.

  • Security of tenure

- judges hold their posts ‘during good behaviour’ (Act of Settlement 1700/1701)

    So failing criminal conviction they can only be removed (at High Court level and above) by a resolution of both Houses of Parliament. The retirement age was 75, recently lowered to 70 in 1994. But there was a case in 1998 of a High Court judge, Mr Justice Harman, resigning after being criticised by a Law Lord reviewing one of his cases. The case was Goose v Wilson Sandford. Mr Justice Harman took 20 months to reach a decision and then did so without his original trial notes which he had  misplaced.

  • Pay. Fixed by statute in relation to the senior grades of the senior service and reviewed by the Top Salaries Review Body. Parliament generally accepts the recommendations of this body.

  • Self-regulating professions.

    The Law Society and the Bar Council are the professional associations for solicitors and barristers, from whom judges are drawn, and they set their own professional standards, as well as put their own views to government on the functioning of the judiciary. This creates a strong independent culture in the judiciary.

    For example, the criticism on Michael Howard, former Home Secretary, over reform of the criminal justice system from senior members of the judiciary e.g. the former Lord Chief Justice Lord Taylor’s attack on the introduction of minimum sentencing rules contained in Michael Howard's Criminal Justice Bill which limited the discretion of judges in serious criminal cases.

  • Parliament and the courts: there is a convention that Parliament does not comment on cases before the courts, and Parliament is self regulating under a principle called parliamentary  privilege. This means that parliamentarians enjoy certain legal immunities such as freedom from prosecution for libel for anything said in the House in their capacity as MPs, and Judges cannot comment on the merits of legislation only interpret it. This gives the courts the power to question the legality of ministerial actions through a procedure called judicial review, which determines whether a minister has acted within those power granted by Parliament. There has been a general increase in the number of cases involving the government implying willingness on the part of judges to block actions judged ultra vires (beyond the powers of the minister).

There are still a number of concerns expressed concerning the constitutional position of judges:

1  Should they still be in the House of Lords when it is reformed and after the introduction of the new Human Rights Act which incorporates the European Convention into UK law.

2  Should the Lord Chancellor continue to appoint Judges without any 'lay' involvement which means some one or other from outside the Lord Chancellor's Office. It has been suggested that there should be a Judicial Appointments Committee made up of representatives of the legal profession, or even that senior judicial appointments be ratified by a House of Commons Committee.

    From 2000 this became more significant due to the introduction of the Human Rights Act that gives judges more scope for getting involved with politically sensitive cases. Judicial independence will become more important if there is to be public confidence in the application of the new law; this is especially important following the case of Judge Hoffman in the Pinochet extradition case when it turned out that Judge Hoffman, a Law Lord, had links with Amnesty International a pressure group campaigning for Pinochet's extradition to Spain.

    Clearly, there is a lot of evidence that the British Judiciary is independent in its status and actions but that the climate of constitutional reform that we see in the UK is such that greater importance may be given to a more formal independent position for judges.

To what extent is the judiciary politically independent and neutral?

    The UK does not have a separation of powers between the main arms of government, and the Head of the Judiciary, currently Lord Irvine, is a member of the Cabinet and a close friend of the Prime Minister, so the question arises as to how the courts are able to act impartially and not biased in some way towards the government. Tthis is what judicial independence means. There are a number of safeguards to preserve their independent position:

  • Appointed on merit.

    Law Lords (12 including the Lord Chancellor) are appointed by the Queen on the advice of the  PM  and the Lord Chancellor. Below that the appointments are by the Lord Chancellor.

    High Court judges and above are appointed by invitation from the ranks of Queen’s Council (and, with solicitors now eligible for the High Court) from the ranks of circuit judges. The recommendations of existing judges are the basis for appointment. QCs are assessed by judges when they appear in court; barristers who don’t ‘take silk’ (get to be a QC) can become recorders and circuit judges.

    For barristers to become QCs they must apply to the Lord Chancellor’s office, and it is the view of judges again that prevails. Only 1 in 7 applications is successful.

    The changes of 1998 mean that some judicial posts may be advertised, from circuit and district level up to High Court level. Proposals were that this might involve formal interviews and a lay assessor (someone outside the Lord Chancellor’s Office). The first of these ads were quite radical in saying that candidates would be considered irrespective of race, gender or sexual orientation. The idea is to reduce the mystique involved in the present process and open up the senior ranks of the judiciary to a wider range of applicants.

    At present there is a lot of debate about the need for an independent element in the appointment of judges, or a system that separates them more from the executive and legislature.

  • Security of tenure

- judges hold their posts ‘during good behaviour’ ( Act of Settlement 1700/1701)

    So failing criminal conviction they can only be removed (at High Court level and above) by a resolution of both Houses of Parliament. The retirement age was 75, recently lowered to 70 in 1994. But there was a case in 1998 of a High Court judge, Mr Justice Harman, resigning after being criticised by a  Law Lord reviewing one of his case, (Goose v Wilson Sandford).  Mr Justice Harman took 20 months to reach a decision and then did so without his original trial notes which he had misplaced.

  • Judges' Pay/Wage

    This is fixed by statute in relation to the senior grades of the senior service and reviewed by the Top Salaries Review Body. Parliament generally accepts the recommendations of this body.

  • Self-regulating professions

    The Law Society and the Bar Council are the professional associations for solicitors and barristers, from whom judges are drawn, and they set their own professional standards, as well as put their own views to government on the functioning of the judiciary. This creates a strong independent culture in the judiciary.

  • Parliament and the courts:

    Parliament does not comment on cases before the courts, and Parliament is self regulating under a principle called parliamentary privilege. In 1993, William Rees Mogg brought a case that sought to question the legality of the Maastricht Treaty, arguing that Parliament could not give away its own sovereignty. He lost the case, as judges cannot comment on the merits of legislation only interpret it.

    However, should judges be in the Lords; the European Court of Human Rights has criticised this system in Guernsey, McGonnell v UK, European Court of Human Rights, 8 February 2000.

Recent events that support the view of an independent Judiciary

  • In 1993 Lords ruled that public bodies could not be sued for libel following Derbyshire County Council’s attempt to sue the Sunday Times, thus protecting the freedom of the press.

  • Lords found Kenneth Baker in contempt of court in his treatment of illegal immigrants: M v Home Office [1992] QB 270 CA. "The most significant constitutional ruling since John Wilkes obtained damages against a minister in the 18th century": Michael Bellof - constitutional lawyer.

  • Lord Rees Mogg brought his case in the High Court to block the Maastricht treaty on the grounds that ministers could not give away sovereignty. He lost the case.

  • In 1994 Matrix Churchill trial collapses after the judge over-rules ministers use of so called gagging orders by Ministers, thus ending the trial of the Matrix Churchill directors and throwing doubts on the motives of the government.

  • In July 1997 a senior judge criticised the CPS over the handling of the Stephen Lawrence case.

  • In 1999 Lords ruled that 2 Pakistani women should be given asylum in the UK for fear of ill treatment by relatives in Pakistan.

  • In October 1999 House of Lords ruled that a homosexual couple could be described as a family for the purposes of tenancy law; enables partners in gay relationships to carry on a secure tenancy agreement as if a heterosexual couple.

  • Also in October 1999 the Lords ruled that the British Government was liable to pay compensation to Spanish trawlermen for restricting them from buying British fishing quotas under the Merchant Shipping Act 1988.

The appointment pattern of Law Lords by the Lord Chancellor

    Lord McKay, the former Lord Chancellor appointed Lord Bingham, reputed to be critical of government powers, to replace the late Lord Taylor as Lord Chief Justice.

    Lord Irvine has appointed Lord Hobhouse of Woodborough and Lord Millett as law lords. The two men have been attacked for their alleged conservatism. So this shows a politically appointed figure, the Lord Chancellor, acting in a clearly impartial manner.

On the matter of neutrality, there are two broad views, those of:-

    Lord Denning: judges cast aside all prejudices when appointed and act independently; you have to trust somebody in the constitution. This is a rather benevolent view of judges.

    Professor Griffiths in his writing 'The Polictics of the Judiciary' 5th ed, Fontana (1997): Judges are by nature pro establishment because of their background - they are mostly white, middle-classed and male. They have establishment values. So their notion of the public interest leans towards the establishment.

Allegations of bias often refer to the following:

    This is secretive and largely by 'invitation' and at least it suggests a 'club' atmosphere rather than a transparent one, and some would say keeps a distance between the judges and ordinary people which does not create a feeling of objectivity; this is arguable clearly.

  • Background of judges

    There are very few black or female senior judges.

See also: Gender and the judiciary

  • Sentencing

    Middle class crime e.g. fraud is treated more leniently than other offences. Members of the ethnic minorities are more likely to be given custodial sentences.

See Lord Chancellor's Press notices on latest guidelines issued to new judges on dealing with ethnic minorities. This is a guide to be incorporated into the training  of judges ( partly the job of   the Judicial Studies Board ).

'The Judicial Studies Board provides training and instruction for all full-time and part-time judges in the skills necessary to a judge. An essential element of the philosophy of the JSB is that the training is provided by judges for judges.'

28/09/1999 LAUNCH OF THE EQUAL TREATMENT BENCH BOOK

For the response of one judge to this see The Times Internet Edition Back Issues, Friday, 1st October 1999 'Judge criticises horrid political correctness'.

  • Moral issues

Some rape trials have revealed unsympathetic male attitudes eg:

  • 'When a woman says no she does not always mean it' Comment of a Crown Court judge in rape trial.

  • A youth ordered to pay for his female classmate to go on holiday as compensation for raping her.

  • Police evidence

    Police evidence generally accepted freely, although in law their position in court is no different then any other witness.

  • National security

    The suggestion here is that judges are biased towards the government case on matters of national security: Sarah Tisdall given 6 months for leaking a document and in the case of Clive Ponting in 1985, the judge directed the jury to convict him, but the jury actually ignored the advice.

  • Property rights versus civil rights

    • Property rights or the interests of capital given more protection under the law than individual rights.

    • Trade unions have often felt at a disadvantage compared to employers in the courts.

     

  • Miscarriages of justice e.g. Birmingham 6 and Guildford 4.

This relates to the system of evidence gathering by the police

  • Judges have become more politicised

E.g. the clashes between Michael Howard and the courts in 1995;

Lord Justice Taylor’s response in the Lords to Howard’s call for mandatory sentencing and Lord Justice Taylor’s response that detection was a better deterrent. Judge Hoffman and the Pinochet extradition case in 1999.

  • Conflicts of interest

    Judges are obliged to declare any interest in a case (Hoffman) but there is no register of interests, and clearly the Hoffman case shows the weaknesses of the present system.

RESOURCES

The Judiciary

      Useful resources include:

 

ARTICLES

1994 | 1995 | 1996 | 1997 | 1998 | 1999 | 2000 

 

1994

  • A liberal sprinkling of justice (The Guardian, April 12 1994)

  • A law unto himself? (The Times, April 26 1994)

  • Politics and judges must be separated (The Times, May 10 1994)

  • Judges wanted: apply here (The Times, May 24 1994)

  • 'Offensive' judges go to charm school (The Times, July 29 1994)

  • Judicious adverts set new benchmark (The Times, September 27 1994)

  • First judicial college proposed (The Times, December 1 1994)

 

1995

  • Law Society presses for reform of judiciary (The Times, January 6 1995)

  • 'Too few' female judges (The Times, January 30 1995)

  • Only chosen few can be judges - law chief (The Sunday Telegraph, March 19 1995)

  • Over-70s rule forces law lords to quit (The Times, March 29 1995)

  • Mackay modernises judicial selection to encourage women (The Times, April 10 1995)

  • Judges play growing role in restraining government (The Times, May 16 1995)

  • Judges get lessons in gay etiquette (The Times, June 5 1995)

  • Taylor denies judges are taking liberties (The Times, July 6 1995)

  • Mackay tells judges they face the sack for misbehaviour (The Times, July 21 1995)

  • How does one apply to become a judge? (The Times, August 8 1995)

  • Who judges the judges' behaviour?  Lord Chancellors can go on, and on, and ... (The Times, October 3 1995)

  • Labour law chief attacks judges' claim to supremacy (The Times, October 16 1995)

  • Wanted: judges to judge the judges (The Times, October 24 1995)

  • Reasoning that put Howard on the way to another defeat (The Times, November 2 1995)

  • Equality of opportunity and judicial appointments (LCD, 13 November 1995)

  • Judges go back to school (The Times, December 12 1995)

  • Judicial selection secrecy to end (The Times, December 20 1995)

 

1996

 

1997

 

1998

 

1999

 

2000

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