Independent Judiciary. How Important Is It in the Uncodified Constitution of the UK?

“An independent judiciary has been, and continues to be centrally important to the protection of the individual against the power of the State in an uncodified Constitution of the CK“

Methodology Section;

For research, I have stuck to two very main different methods, first, legal journals written by modern legal scholars found on legal databases. Second, philosophical writings from a wide range of great minds, used largely in relation to the relation between the state and the individual, a fundamental question that has been part of legal/political theory since the time of Hobbes’s Leviathan. As well as these more broadly we can analyse certain statues and cases and access how effective or otherwise they are in relation to the question at hand. Legal journals are significantly useful for answering a specific legal question due to the nature of how legal databases work and thus they are used far more in relation to the question of the independent judiciary and it’s relation to the individual and the state, and how it protects or otherwise such individual’s rights. The latter philosophical writings are used more to establish a fundamental basis from which we can build on the concept of the state/individual relationship. A selection of around 10 legal articles has been gathered, and although I will not be able to use them all in my arguments due to word limits, they will help to guide my flow as I think about the question. The reason why I think this approach is effective is that what I am doing is finding a solid philosophical footing with the workings of the forefathers of political and legal theory, and I am then expending this out to the modern situation using legal articles. That way I can be sure that the core of the argument here is solid but I can also ensure that my sources can be more modern and thus don’t suffer from being too outdated.

Argument section;

The question at hand can be set into two parts, first the extent to which the judiciary is independent (and how this has changed) and to what extent such independence has the power to protect the fundamental rights of the individual against the state. For centuries now the core of this question has plagued philosophers and scholars, all the way back the 17th century when Thomas Hobbes released the first fundamental work of modern political theory, Levithan (1651). Hobbes’s fundamental point was that a lack of a powerful state will result in chaos, as he saw it, human nature was fundamentally barbaric and the only way we could ensure society was not barbaric was with a state that exercised a significant amount of power upon the individual. This was the first work that started the concept of social contract theory. Social contract theory is important to the question here because it deals with the state/individual divide. The theory argues that the individual either expressly or impliedly surrenders certain rights to the state in exchange for protection of their remainings rights, social anarchy or crime. This theory is largely still fundamental in modern society since the best justification for the existence of the state is that it protects the people from things like crime and upholds their rights.

In 2005, the Constitutional Reform Act The independence of the judiciary was absolutely ensured. The selection process is designed to minimise political interference to try and promote the independence of the judiciary. The procedure focuses not on lawmakers but on the senior members of the judiciary. Part 2 of the 2007 Tribunals, Courts and Enforcement Act aims at increasing the diversity between the judiciary. As well as this, they were removed from the House of Lords, the judges of the Supreme Court became exempt from scrutiny from MPs in October 2009. The independence of the judiciary, therefore, has been strongly and firmly established since the creation of the Supreme Court. As is pointed out by Kate Malleson 'The primary rationale for the creation of the Supreme Court was to remove the United Kingdom’s top court from Parliament so as to ensure a clearer formal separation of powers between the legislature and the judiciary. The argument was not that the presence of the Law Lords in the House of Lords had, in practice, led to any erosion of judicial independence, but rather that it had become an inappropriate institutional arrangement in a modern democracy.'¹ The situation was a way to make the Supreme Court exempt from parliament as a whole, meaning they are both physically and metaphorically separated. Further, the Constitutional Reform Act 2005 ensures that the Lord Chancellor and Prime Minister cannot, at random, decide on a certain judge without sufficient reason, making the Judicial Committee of the Privy Council significantly more independent from powers of the state. What’s more, is the fact the Act of Settlement 1701 established security of tenure forjudges until retirement and ensured judges’ commissions are valid during good behaviour and if they do not behave themselves they can be removed only by both houses of parliament. The laws were the result of various monarchs controlling the judges ’ decisions and were meant to guarantee judicial independence from the tyranny of the powers that be. This patent was used prior to 1701 but did not prevent Charles I removing Sir John Walter as Chief Baron of the Exchequer after they clashed on the law of Treason in 1630.

In a Richard Dimbleby Lecture at the BBC in 1976, former Lord Chancellor of the UK Lord Hailsham used the term "elective dictatorship" to explain the problem with the powers of the state in an uncodified constitution. When a Government has a supermajority (i.e Blair in 1997, Attlee in 1945) they can practically pass any act they so desire. The government can change the rules for its own interest, political despotism isn’t completely decried if there is a flexible constitution. A totalitarian government at least in theory could get into power and impose a type of tyranny on the people of a country, disregarding their rights and rather instead imposing a harsh social authoritarian rule on the country. There is no fundamental document of rights, that has entrenched clauses protecting them from being amended or changed by the state. Therefore, indeed, the courts act as a fail-safe should the government attempt to overstep the rights of the individual, as evinced by HM Treasury v Ahmed, wherein Supreme Court Judges rule that the Treasury had acted ultra vires because they had frozen the assets of terrorist without trial². This demonstrates how judges have stopped the government from exercising executive dominance in relation to fundamental rights. This is pointed out by Robert B Taylor, "Although Dicey asserted that individual liberty was guaranteed under the constitution by virtue of the rule of law, the dominance of Diceyan thinking throughout the first half of the twentieth century is now widely seen to have instilled a culture of judicial deference towards executive discretion that was maintained even at the expense of personal liberty. The human rights of individuals, therefore, are seen to be at risk from tyrannical governments, which may exercise wide discretionary powers free from legal accountability"³.

Fundamental to this question is the concept of Judicial Review, a process under which the powers that be are subject to review by the courts. It is an important check and balance in a country with a separation of powers. Of this concept, In 1926, Harold Laski said "It is difficult to overestimate the significance of the judiciary in the modern state. The work of the executive has become so vast, the powers delegated to it by the legislature are so wide, that judges are, perhaps more than at any previous time, the real safeguard of personal liberty."⁴ The ability of this, however, is limited. Since we do not have a confided constitution, the judges of the courts have nothing to compare to in relation to law, as in, they cannot confirm nor deny the legitimacy of an act of parliament against a laid-out constitution. This limits the courts’ ability to protect the individual against the powers of the state because they cannot declare something unconstitutional upon review as we do not have a written document of human rights to compare it to. In contrast, the US does, and therefore it allows a very transparent and precise process of judicial review. Seen in Near v. Minnesota (1931) where the United States Supreme Court ruled that previous publishing limits breach the freedom of the press as enshrined in the first amendment, a practise generally applied in subsequent jurisprudence to freedom of speech⁵. This meant that the court was able to decide based off on the already existing constitution, meaning the judges knew the exact provisions of the situation and that no doubt existed about the nature of the crime. In contrast, in the UK it might be that there is little to no idea to the legitimate nature of law and how it is reviewed. However, despite this drawback from how far judicial review can go it does not by any means suggest it is not a significantly useful process in the protection of individual rights, as is pointed out by Christopher Forsyth and Mark Elliott "procedural rules enforced by judicial review lie at the very core of the rule of law: they preclude the arbitrary treatment of individuals, ensuring that executive power is not abused in breach of fundamental principles of justice and fairness ... The denial of natural justice in the case of a deprivation of personal liberty, for example, would constitute a most serious infringement of the rule of law"⁶. The link between the fundamental concept of rule of law and judicial review is powerful. Rule of law is central to a democratic society, and it is protected by the independence of the judiciary. The State’s effect on the citizen has increased, and the internet allows for more surveillance. The Supreme Court was not turned into a Constitutional Court but it will be more assured and better resourced in what it considers as its domain.

Conclusion;

"A wise judge will be reluctant to accept at face value legislation which violates important civil rights, and will strive to interpret it consistently with traditional (common law) values of individual liberty and autonomy"⁷

Although in the context of our uncodified but evolving constitution there are limits on the power of our judiciary and its ability to protect important rights against the tyranny of the state, it has and continues to play a fundamental role in the upholding of human rights, especially in a post-Human Rights Act world. For as long as the state has the power it does, without a codified bill of rights to prevent despotism, the courts are necessary and important in the protection of fundamental human rights, and since the UK is going to leave the European Union, this will only become more fundamental as time goes on.

bibliography

The evolving role of the Supreme Court, P.L. 2011, Oct, 754-772 Star pages *755

HM Treasury v Ahmed 2010 UKSC 2]

The contested constitution: an analysis of the competing models of British constitutionalism, P.L. 2018, Jul, 500-522 Star pages *50

H. Laski, "The Technique of Judicial Appointment" (1926) 24 Michigan Law Review 529.

Near v. Minnesota 283 U.S. 697 (1931)

The legitimacy of judicial review, P.L. 2003, Sum, 286-307 Star pages *293

Allan, The Sovereignty of Law: Freedom, Constitution, and Common Law (2013), p.13.

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¹ The evolving role of the Supreme Court, P.L. 2011, Oct, 754-772 Star pages *755

² 2010 UKSC 2]

³ The contested constitution: an analysis of the competing models of British constitutionalism, P.L. 2018, Jul, 500-522 Star pages *50

⁴ H. Laski, "The Technique of Judicial Appointment" (1926) 24 Michigan Law Review 529.

⁵ 283 U.S. 697 (1931)

⁶ The legitimacy of judicial review, P.L. 2003, Sum, 286-307 Star pages *293

⁷ Allan, The Sovereignty of Law: Freedom, Constitution, and Common Law (2013), p.13.