Unit 6: British Judiciary

1. Readings: Norton CH 12 Unit 6: British Judiciary

2. Guiding Questions • How are British judicial institutions being reconstituted? • What prompted this push for judicial reform? • What are the consequences of reform for the position of Lord Chancellor? UK Supreme Court? UK judiciary?

3. Introduction • Constitutionally, the judiciary is subordinate to Parliament. • Judges are supposed to confine their rulings to the provisions of a specific law. • In instances where the law is unclear or may no longer be relevant, justices can “interpret” law in such a way as to essentially “make” law.

4. Introduction • Individual judges are taking a more active role within political life. • Judicial institutions continue to be a subject of debate. • Particularly as the recently created Supreme Court develops. • Attempts to separate judicial, executive, and legislative authority are ongoing.

5. Role of the Lord Chancellor • Historically, the Lord Chancellor served as the head of the judicial branch. • As a result, he sat amongst the Law Lords and had a role to play in selecting justices. • BUT, he was also a member of Cabinet • Thus he was also a member of the executive branch. • AND, he was also a member of the House of Lords and could, thus, vote on bills, etc. • Also a member of the legislative branch. • In essence, the Lord Chancellor wore “three hats”

6. Office of the Lord Chancellor Questioned • The fusion of executive, legislative, and judicial authority has been a subject of debate for decades. • A series of events following Labour’s election brought the issue to a head • Lord Steyn (Law Lord): conflict of interest was “no longer sustainable on either constitutional or pragmatic grounds” • 2000 ECHR decision suggested it was wrong for those who have a say in passing legislation to sit in judgment of cases that arise from it.

7. Pressure Mounts • Initially, judicial reform was not on the table. • Institutional reforms often placed on the backburner. • In the face of increasing debate over his role, Lord Chancellor (Lord Irvine of Lairg), began to limit involvement in cases and Lords debates. • 2003: Council of Europe’s Legal Affairs and Human Rights committee questions the independence of British courts. • 2003:Bar Council finds that the Lord Chancellor should not sit in Cabinet and serve as a judge.

8. Blair Government Responds • While no one believed that the Law Lords/Lord Chancellor were compromised, the government worried about the appearance of impropriety. • Prompted a reshuffle and a proposal to overhaul the judicial system. • Lord Irvine was out. • Became a political liability and loyalty questioned. • Proposal included eliminating the position of Lord Chancellor and the creation of a Supreme Court.

9. Political Headaches • Bill suffered several defeats in the Lords. • Peers questioned: • 1) the elimination of the position of the Lord Chancellor • 2) whether the creation of a Supreme Court was really necessary • 3) where the Supreme Court would be housed • 4) and how to reflect the regions on the court. • Because the bill was initiated in the Lords, the Parliament Acts could not be used. • Lords were able to extract several concessions.

10. Constitutional Reform Bill of 2005: Lord Chancellor • Government decided to retain the office of Lord Chancellor. • But changed the responsibilities of the position. • 1) Lord Chancellor remains in Cabinet • But could no longer serve as a judge; nor head of the judiciary. • Current occupant, Jack Straw is the first not to be a peer. • 2) Lord Chancellor no longer chooses judges. • Independent commission selects justices. • LC can affirm or reject decisions but cannot nominate • 3) Lord Chancellor no longer presides over the House of Lords. • Speaker of the Lords created.

11. Constitutional Reform Bill of 2005: The British Supreme Court • Debate over how to house the new court. • Law Lords would no longer sit in the House of Lords. • But should court be removed from Westminster? • Government argued that to leave the Court in Westminster would send the wrong message. • Law Lords worried about questions of funding and housing the new institution. • “Sunrise clause” required the court to be adequately funded and housed before being shifted from the Lords. • Settled on Middlesex Guildhall. • Government agreed that courts would control how to spend funds. • Formally seated in October 2009.

12. Constitutional Reform Bill of 2005: The British Supreme Court • 12 members appointed by a selections committee. • New members will no longer receive a peerage in the Lords during their tenure. • Although they may receive one at retirement. • Must retire at 70 if appointed after March 1995. • Retires at 75 otherwise. • Convention dictates that Northern Ireland and Scotland should be represented on the court. • This is not codified in lawhowever. • Court will have special jurisdiction on issues pertaining to devolution. • Sewel motion: removes certain Scottish cases from the purview of the Supreme Court. • Court will not have judicial review.

13. Constitutional Reform Bill of 2005: Concordat • Lords pushed for an explicit recognition of the independence of the judiciary. • Bill codifies the independence of the judiciary by: • 1) Explicitly delineating judicial and executive functions. • 2) Making judicial appointments more transparent and less “political” • 3) Retain “laymen” to serve on commission to draw a more balanced assessment of candidates. • 4) Judiciary to recruit their own staff, establish their own spending plans, etc.

14. Conclusions • Though Parliament remains supreme, the judiciary is becoming more visible and arguably more relevant. • Desire to “modernize” the system key to explaining reform. • EU laws provided additional incentives. • Creation of a Supreme Court has critical consequences for not only the judicial and legislative branches, but also for devolved institutions. • Extent to which the Supreme Court can carve out a role vis-à-vis parliament remains to be seen.

15. Next Unit • Theme: Unitary Government • Readings: Norton CH 10 and Dunleavy CH 2