The British Judiciary

1. The British Judiciary Horsehair wigs, ermine robes and the Victorian Gothic buildings of the High Court in London. Are these symbols of the stability of our ancient constitution or of an outdated institution in need of long overdue reform ?

2. Supreme Court of the UK from 2009

3. The role of the UK judiciary in theory. • The theory of the separation of powers stresses the independence of the judiciary from the executive and legislative branches of government. • Judges are meant to be non-political (or apolitical). • UK judges interpret the meaning of the law and enforce the law but do not make the law or over-turn the law. • Past legal precedent is there is to guide judges in making their decisions. Law that has been shaped by judges in this way is called Common Law as opposed to laws passed by Act of Parliament (Statute Law)

4. The role of the judiciary in practice. • The process of judicial review (see slides 14-16) does give judges a political role, especially where they are asked to review the legality of government decisions. • The separation of powers principle is not strictly observed as the highest judges (the Law Lords) are members of the legislature; they sit and vote in the House of Lords. • The head of the judiciary (the Lord Chancellor) is a member of all three branches of government: he is a member of the House of Lords (legislature) as well as being a member of the Cabinet (executive) and head of the judiciary. • The incorporation of the Human Rights Act (1998) gives judges the power to reverse UK law if it conflicts with higher EU law on human rights. (see slide 19 also)

5. How do UK courts differ from US courts ? • The UK has an uncodified constitution. • Unlike the US Supreme Court, UK courts cannot declare Acts of Parliament unconstitutional (UK adheres to the principle of parliamentary sovereignty). • UK judges have far less power of judicial review than US Supreme Court (see slide on judicial review) • UK judges have traditionally been appointed by the Lord Chancellor and were not subject to any formal checks as are US Supreme Court judges.

6. Are UK judges conservative by nature ? • It was long believed that the social class background of most judges was both elitist and conservative. • The majority of judges were/are products of exclusive private schools and universities (‘Oxbridge’) and are predominantly white, male and from middle and upper-middle class backgrounds. • They share this background with many MPs and senior civil servants. Tony Blair was an Oxford educated barrister before entering politics.

7. The background of UK Judges. Are they ‘out of touch’ ? A survey in 2002 found that of 774 senior judges: • The average age was over 60 • 8% were women • 67% went to public (ie private) school • 60 % went to Oxford or Cambridge • 92% of Law Lords went to ‘Oxbridge’ (100% since 1997) • All had been barristers (a very expensive profession to enter)

8. How are Judicial appointments made in the UK ? • Before 1994 all judicial appointments were made secretly by the Lord Chancellor (who is a Cabinet Minister appointed by the Prime Minister) • The process was opened up in 1994 with vacancies for judges being advertised and interview panels being established involving a senior judge as well as non-lawyers. • The 2005 Constitutional Reform Act introduced new selection procedures. A new 15 member Judicial Appointments Commission (5 judges, 5 lawyers and 5 people not connected to the legal profession) will make all future recommendations for judicial appointments.

9. The new selection procedures • Step 1: vacancies are advertised and applications accepted. • Step 2: interview and short-listing of candidates. • Step 3: Selection and recommendations to the Lord Chancellor for final approval. He can still reject those recommendations but must provide reasons for doing so. It is expected that he will approve the recommended candidates. N.B.This process is still in a transition phase as the Act was only passed in 2005 and the new Supreme Court of the UK does not come into being until 2009. It is too early to review its success or failure.

10. The ancient and venerable title of Lord Chancellor is over 1,400 years old. There was considerable outcry in 2003 when Tony Blair announced that the title was to be abolished. The Queen herself was said to have privately ‘expressed concern’ at this decision; a rare example of the monarch’s intervention in politics. The 2005 Constitutional Reform Act retained the title of Lord Chancellor but removed it of much of its traditional powers. The job has now been combined with another cabinet position of Secretary of State for Justice following the break up of the Home Office in 2007 into two separate departments: Home Office and the new Ministry of Justice. Steeped in history, one of the Lord Chancellor’s ceremonial roles is to hand the Queen her speech at the state opening of parliament in November.

11. The Constitutional Reform Act (2005) • In 2003 the Blair government announced plans to reform the highest court of appeal in the UK (known as the Law Lords) • The aim was to separate the Law Lords from the House of Lords and create a UK Supreme Court separate from the legislature. • The ancient position of Lord Chancellor was due to be scrapped. A new Judicial Appointments Commission was to take over his role of appointing judges. The position of Lord Chancellor was retained but with most of its powers removed. (see next slide also)

12. The role of the Lord Chancellor • Blair’s original reform proposals had intended to abolish the title. • The 2005 bill retained the title of Lord Chancellor but his powers to solely appoint judges were transferred to the new Judicial Appointments Commission (see slide 5) • The new role is called Lord High Chancellor of England and Secretary of State for Justice. He remains a part of the Cabinet but his functions in the House of Lords have been transferred to the Speaker of the House of Lords. • In June 2007 Jack Straw replaced Lord Falconer as the new Lord Chancellor. He is the first one in history who is a member of the House of Commons and not the House of Lords. As the job now has the enhanced political role of being Secretary of State for Justice its is felt that the holder of this office should be an elected politician. • Charles Falconer was seen as a key ally and confidante of Tony Blair. Gordon Brown re-shuffled the Cabinet and appointed Straw to succeed him.

13. Charles Falconer (above left) was replaced as Lord Chancellor in June 2007 by Jack Straw (above right) following Gordon Brown’s first cabinet re-shuffle. Falconer had been seen as ‘Tony’s Crony’. The two men have been life-long friends.

14. Is the UK judiciary becoming more politicised ? • The US Supreme Court is more openly politicised than the UK courts. • The appointment of US judges involves partisan (party biased) decisions by both the President and the Senate Judiciary Committee. • UK courts tend not to over-rule government unless there is a clear breach of legal precedent or requirements (see slide 12 on judicial review) • US Supreme Court is seen as part of the process of government whereas UK courts tend to be seen as ‘above’ party politics.

15. Growing politicisation of UK courts • Recent trends have seen UK courts become increasingly politicised. • Government decisions have been reviewed by the courts in matters ranging from asylum applications, detention of terrorist suspects, immigration law and equal opportunities issues. • UK judges are increasingly involved in the arena of political decision making.

16. Can senior judges ever be truly independent ? • Judges cannot be removed from office except for misconduct. • They do not have to face any election process. • The media is forbidden from commenting on legal cases while they are in progress they can only report on them). • These factors should ensure they remain free from political pressure.

17. Can senior judges ever be truly independent ? • Senior judges have been chosen by the Lord Chancellor. He is both a judge and a politician. He is a member of the cabinet appointed by the PM and as such he owes his office to him. • Therefore it could be argued that judges have been politically appointed. • The social elitism of judges calls into question how far they truly reflect society at large, although the same could be said of MPs, ministers and civil servants to varying degrees.

18. How does the process of judicial review operate in UK courts ? • UK courts interpret the precise meaning of Acts of Parliament. • They also can carry out a ‘judicial review’ of government actions if: • The government has acted beyond its legal powers (ultra vires). • If the government has acted in a way that can be shown to be improper, unfair or irrational.

19. How does a judicial review take place ? • If an individual or organisation feels aggrieved by the actions of the government or a public body they can apply to the High Court for a judicial review to take place. • Only about one third of these applications usually reach a final hearing. • There is always a backlog of cases awaiting a hearing and the process can take years.

20. What action can a judicial review take ? • If it can be proved that the government has acted outside of their powers then their actions or decisions can be over-turned (quashed) by the courts. • A public body (eg a local education authority) can be forced to carry out an action (eg provide a place at a special school for a disabled child) • An injunction can be issued to stop an action taking place (eg a newspaper running a story or a strike from occurring if a trade union has broken the law).

21. Problems with judicial review Should judges from an elite social class background be responsible for ruling on laws passed by elected politicians in the House of Commons ?

22. The European Court of Human Rights • The court sits in Strasbourg (France) • Citizens from EU countries can take cases to the court if they feel their rights under the European Convention on Human Rights have been violated. • Cases can only be brought by appellants (person making the appeal) if they have exhausted all other legal procedures in their own country. • Because the UK government was found to be in breach of human rights frequently, the Blair government incorporated the European Convention on Human Rights into UK law with the Human Rights Act (1998). The aim was to lessen the need for UK citizens to apply directly to the European courts for redress of grievances.

23. Some discussion points • How is independence established and maintained in the British judiciary ? • To what extent can the senior judiciary be politically neutral ? • What is the most effective safeguard of UK citizens’ rights ? • Why is the process of judicial review of lesser importance in the British legal system than the American ?

24. Effective safeguards of rights • European Court of Justice and European Court of Human Rights. • The Law Lords. • Pressure groups and the media.

25. Judicial review • The US Supreme Court has the ultimate say in deciding on constitutional questions. • The UK courts are subject to the sovereignty of parliament. • Judicial review in the UK and USA is constrained by time. Only a very small number of cases can be dealt with by the highest courts. Most legal challenges never get to this level.