2 The current role of the judiciary
Overview
5. The role of the judiciary within
the UK's constitutional arrangements is not set out in a single
document and, like the constitution itself, has evolvedand continues
to evolve from a variety of sources including Acts of Parliament,
common law precedents and conventions.Professor Roger Masterman,
of Durham University, and Dr Jo Murkens, of the London School
of Economics and Political Science, citing the nineteenth century
constitutional scholar A.V. Dicey, stated:
In the absence of a codified constitution
guaranteeing its status the role and powers of the judiciary in
the UK constitution have traditionally had to be inferred or induced
from particular judicial decisions.[1]
6. The evidence we received supports
the interpretivenature of the judiciary's role in the UK. Dr Patrick
O'Brien,of University College London, stated that the judiciary
"adjudicate disputes impartially and independently based
on the law".[2]This
traditionally interpretive role has evolved in the light of the
different powers Parliament has conferred upon the judiciary.In
some instances, this has led to a judicial role more akin to that
in countries that have codified constitutions.Professor Andrew
Le Sueur, of the University of Essex, gave us some examples of
the role the judiciary already havein relation to constitutional
matters in the UK.These include:
determining legal disagreements
about the respective powers of different institutions within the
constitution, for example between the UK Parliament and the UK
Government, or between the central and local government;
dealing with legal questions about
the division of powers between the UK and the European Union,
under the guidance of preliminary rulings by the European Court
of Justice;
adjudicating on legal questions
about the exercise of powers by executive and legislative institutions
in Scotland, Wales and Northern Ireland in accordance with the
devolution settlements created by the UK Parliament;
protecting fundamental rights of
individuals, including those in the Human Rights Act 1998, taking
into account the case law of the European Court of Human Rights.
[...]
judicial review of executive action
and delegated legislation, ensuring that public bodies remain
within the powers conferred on them by Acts of Parliament and
operate in accordance with judge-made legal principles of (for
example) fairness and rationality.[3]
The Constitutional Reform Act
2005
7. The Constitutional Reform Act 2005
enshrined the independence of the judiciary in statute, but did
not change the role of the judiciary.The Act included a duty on
Ministers to uphold the independence of the judiciary and also
made significant changes to the role of the Lord Chancellor, whosejudicial
functions were transferred to the Lord Chief Justice for England
and Wales, who is the head of the judiciary in England and Wales
and who is now responsible for the training, guidance and deployment
of judges in England and Wales.An independent Judicial Appointments
Commission was set up to select candidates for judicial office.
An independent Supreme Court was also established, which replaced
the House of Lords as the final Court of Appeal.[4]
8. Under the Constitutional Reform Act,
serving Supreme Court judges are disqualified from sitting or
voting in the House of Lords.Lord Hope, when commenting on the
impact of this, said that he did not think that it affected the
way in which judges did their jobs.He said:"for those actually
serving as judges, I think it does not matter one way or the other,
frankly, because the judges are not involved with the business
of the House anyway".[5]Lord
Phillips stated: "I would go a little further and say that
the whole object of moving the judges out of Parliament into a
Supreme Court was to make the separation of powers transparent."[6]
9. Whilst the Constitutional Reform
Act brought about a more explicit separation of powers between
the judiciary, the executive, and the legislature, we heard from
Professor Le Sueur that the changesmeant that "the judiciary
no longer has serving members in the House of Lords able to contribute
to debates there".[7]He
made the point that Parliament may have lost some valuable input
from the judiciary, stating: "I am sure many senior members
of the judiciary feel that something important has been lost".[8]
10. Professor Robert Hazell, of University
College London, statedthat there is now a "much more systematic
and constructive engagement between the judiciary and Parliament,
mainly through parliamentary Select Committees,"[9]
and that members of the judiciary have been much more willing
to appear before Select Committees since the Constitutional Reform
Act.Professor Hazell told us:
We have done an analysis of judges
being invited to give evidence to parliamentary Select Committees
and I was very surprised at how frequent it is. Since 2006 when
the Act came into force, there have been about 120 judicial appearances
before parliamentary committees by serving judges. If you add
in retired judges and international judges, it comes to 280 judicial
appearances.[10]
In 2012, the Judicial Executive Board
published Guidance to Judges on Appearancesbefore Select Committees.This
makes it clear that the appearance of judges before Select Committees
is still regarded as unusual:
For the most part parliamentary
business, including the business of select committees, is conducted
without the involvement of the judiciary, and without the appearances
of judges before them. Such appearances should be regarded as
exceptional. Indeed, until the last quarter of the twentieth century
there were virtually no appearances by judges before parliamentary
committees.[11]
11. Although serving Supreme Court judges
cannot sit or vote in the House of Lords, those Supreme Court
judges who are currently members of the House of Lords can resume
an active part in proceedings after they retire.However, Supreme
Court judges who were not previously members of the House of Lords
will not automatically have a seat in the Lords on their retirement
12. We welcome the fact that the
Constitutional Reform Act 2005 enshrined judicial independence
in law.We also welcome the greater transparency in the separation
of powers between the judiciary, the executive and the legislature
that the Act brought about.
1 Professor Roger Masterman, Dr Jo Murkens (CRJ 003) Back
2
Dr Patrick O'Brien(CRJ 014) Back
3
Professor Andrew Le Sueur(CRJ 009) para 10 Back
4
In Scotland the general rule is that civil appeals come to the
UK Supreme Court, but the High Court of Justiciary in Scotland
sitting as an appeal court is the final court of appeal for criminal
cases. Back
5
Q226 [Lord Hope] Back
6
Q226 [Lord Phillips] Back
7
Professor Andrew Le Sueur(CRJ 009) para 15 Back
8
Q29 [Professor Andrew Le Sueur] Back
9
Q58 [Professor Robert Hazell] Back
10
Q58 [Professor Robert Hazell] Back
11
Judicial Executive Board, Guidance to Judges on Appearances before Select Committees,
(October 2012), p 2 Back
|
