What is a constitution?
- “A social contract between the people and their government” (McNaughton) which underpins the workings of a political system.
- It sets out the basis upon which the people agree to be ruled and the govt agree to act within strictly defined rules limiting their power to do as they wish.
- Within these rules provision is made to protect the civil liberties of the people and to set out the procedure by which the Constitution can be altered.
- A constitution spells out the architecture of governance. It spells out the rules which establishes the duties, powers and functions of the various institutions of government.
- It also defines the relationship between the state and the individual.
What is the difference between a codified and uncodified constitution?
- Codified – written in a single document, also entrenched and superior to all other laws.
- Uncodified – growing collection of documents, laws and traditions. The UK Constitution has various sources from which it has developed.
What are the arguments given suggesting there is not a UK Constitution?
- It is uncodified – not organised into any single codex or document, but is scattered in many different sources and some parts are unwritten. Therefore, how can it be followed as a superior power?
- Constitutional statutes do not have more authority than other statutes.
- Constitutional laws cannot be entrenched due to parliamentary sovereignty, e.g. 1994 Criminal Justice Act overturned the Constitutional “right to silence.”
What are the arguments given suggesting there is a UK Constitution?
- There is a general sense of a constitution.
- Tradition is a very powerful influence within the UK. Governments are reluctant to infringe independence of the *Judiciary, freedom of expression, primacy of the Cabinet etc.
- The public act as guardians of constitutional principles by voting out govts that have offended against these principles.
- There are accepted forms of constitutional rules.
What are the sources of the UK Constitution?
- Statute Law/Acts of Parliament.
- Common Law/Legal Precedent
- Prerogative powers e.g. National Security
- Unwritten Conventions e.g. Collective Ministerial Responsibility
- Books of Authority e.g. Dicey’s “An introduction to the study of law of the Constitution”, Bagehot, Erskine *May’s “Parliamentary Practice”
- European Law including treaties such as Maastricht Treaty, Lisbon Treaty
What is the weakness of the UK Constitution?
- Statute is supreme over other constitutional authorities.
- Therefore, an Act of Parliament can change/abolish any point of Common Law, RPP etc
- Statute is controlled by Parliament and Parliament is controlled by governing party.
What are the features of the UK Constitution?
- Unitary – Sovereignty in one place.
- Parliamentary system – supreme legislative.
- Rule of law – guiding principle that underlies UK Constitution limits government (everyone is equal under the law).
- Limited sovereignty – limited by EU membership.
- Constitutional monarchy - The Queen is the head of state but her powers are strictly limited.
- Flexible – b/c unentrenched.
- Little separation of powers – no one person should be a member of more than one branch of govt (Montesquieu’s ideas). There is a fusion of powers between the legislature and executive.
- Single tier legal system.
- Uncodified but part written.
What are the arguments in favour of a codified Constitution?
- To make it definitive, and not subject to the whim of the government of the day.
- To limit executive power which controls Parliament through an elected Commons majority. The aim would be to disperse power more widely.
- To define powers and limitations of different government institutions, making it possible for senior judges to rule when their actions are unconstitutional.
- Individual rights are not protected enough by the Human Rights Act.
What are the arguments against a codified constitution?
- Would harm the efficiency of govt – present system allows to pass laws and deal with urgent matters quickly.
- Would prevent flexibility which currently allows govt to adapt to change. e.g. in USA presidential attempts to quickly adapt to crises have been rejected by Supreme Court using the Constitution.
- Would end Parliamentary Sovereignty and therefore undermine many of the institutions that the govt is based, destroying traditions which uphold the British political system.
- Lack of consensual agreement as to what form a codified constitution should take. No agreement by the political parties will be reached.
What is Parliamentary sovereignty?
- Parliament can make any law it likes – “Parliament can make a law forbidding Frenchmen to smoke on the streets of Paris.” – Sir Ivor Jennings. This has been limited in recent years due to power going to the EU and devolved assemblies. However, these two limitations can be cancelled out by a single statute.
- Parliamentary law is supreme and therefore everyone must obey it.
- Parliament cannot be limited by the actions of previous parliaments – implied repeal. e.g. 1994 Civil Justice *Act overruled constitutional right to silence which had existed for centuries.
- The orthodox view, however, is that sovereignty lies with the people who transfer it to the govt by election for that govt’s term of office.
How has membership of the EU affected the Constitution and the principle of Sovereignty?
- ECA 1972:
- Any laws on trade/welfare/employment passed by EU automatically become law in UK.
- Parliament cannot overrule a EU Law once it has been passed by making a Statute against it.
- Factortame – gave English courts a new role - the right to set aside acts of Parlt and also demonstrated that in certain areas e.g. trade, welfare, employment law, the supreme authority was EU law in ECJ.
- However, veto remains in many key areas – the ones that go right to the heart of what it means to be a nation state.
- However, the way the EU was introduced into UK law makes it vulnerable to PS – a law can ultimately be passed to get take Britain out of the EU.
- European Convention on Human Rights - Human Rights Act (1998)
What are the Royal Prerogative Powers?
- A collection of special powers, rights and immunities peculiar to the Crown and not conferred by Parliament.
- Many are the leave-over from when the monarch ruled without parlt. Once held by the monarch they have now passed to the PM.
- There is no definitive list of these prerogative powers and thus it is hard to know their limits.
What is the Rule of Law?
- A guiding principle that underlies the UK Constitution. It is expected that the sources of the constitution will be used in such a way as to respect this theory and not transgress from what it sets down. It has five aspects:
- Legal equality – everybody should be equally subject to the law, this includes the government. A citizen, for example, can take the govt to court if they think the official has acted outside the power Parlt has given them.
- Just law – Justice and the law are the same thing under RoL
- Legal certainty – Law is clear, by being certain it limits the power of the state and prevents it from making arbitrary law. However, implied repeal does not follow this
- Innocent until proven guilty – however Criminal Justice Act 1994 contradicts right to silence
- Independent Judiciary – Independent of govt control, not appointed by politicians. However, in UK the Lord Chancellor appoints
What are the three parts of govt?
- Legislative – make law legitimate
- Executive – create law
- Judiciary – interpret and enforce law
What are the rules about the separation of powers?
- No one person should be a member of more than one branch of govt – Montesquieu’s ideas.
- Each branch should possess power that limit the other two branches of govt and in this way no one branch of govt could concentrate all power in its hands.
- The different parts thus have to act in co-operation with each other to get anything done.
What are the arguments to suggest that the 1998 Human Rights Act is a good idea?
- Gives people a safeguard of democratic values. Before the HRA people had to rely primarily on the self-restraint of the govt of the day.
- More accessible to “average Joe” – therefore easier to find a case against someone who is breaching human rights
- Gives courts more power – can declare laws incompatible with HRA
What are the arguments to suggest that the HRA is fundamentally flawed and even harmful?
- Judges cannot strike down law if they feel it is incompatible with HRA, therefore could be ignored.
- All of the laws within HRA already existed, but just in different places.
- “Vexatious cases” – people use HRA to try to change things e.g. Polly Toynbee, these cases cost the taxpayer a lot of money.
- Extremists can be marginalised through other legislation e.g. Statutes against racism.
- Free speech should be given to everyone – even those you disagree with. This is a logical conclusion to the act. However, this also conflicts with the act.
What are the three parts of Parliament?
- Queen in Parliament (Royal Assent – but always given since 1707 and Queen not allowed in Commons)
What is Parliamentary government?
- A system in which the government governs in and through parliament, in the sense that the executive and legislature are 'fused'.
- The main features of parliamentary government include that government arises indirectly as a result of parliamentary elections, that the personnel of government are drawn from parliament, that government is accountable to, and removable by, parliament (flexible term elections).
Give the functions specific to the House of Commons
- The House of Commons currently has 659 MPs sitting in it and the Commons is seen as a cradle of democracy where even a government with a huge parliamentary majority can see that majority dwindle if party members vote against the government - as the 2004 tuition fee issue demonstrated.
- The principle function of the Commons is to scrutinise government bills and vote on them - therefore having a vital input in to how laws are made in this country.
- Some would argue that one of the most important functions of the House of Commons is that it is the most important political forum in the country where, when in session, it can exchange views between spokespeople for the Government and the opposition. e.g general election
Give 6 functions of Parliament and explain them
- Sustaining govt – Commons have been elected by people. Therefore by supporting govt it is giving people the claim that they have been represented and gives authority a& legitimacy to govt.
- Legislation – Gives legitimacy to govt as this is a formal process of passing laws. Commons almost always pass laws uncontested.
- Making govt accountable – Ministers answer to Parlt. Actions and policies must be explained so errors may be exposed. Ministers may be forced to resign in extreme circumstances. Therefore, govt will be more careful not to make errors.
- Law making – not legislation, as this occurs when govt itself introduces a bill. Bills could be introduced by individual MPS – “Private Members’ Bill”. Although success in this is rare.
- Representation – MPs represent a constituency and, in theory, represent interests of constituents.
- Scrutiny & influence – Select Committees scrutinise and interrogate govt. Question time – PM & govt stand up in Parlt and can be asked any questions by MPs. However, how useful is this?
Give examples to show whether or not Parliament is effectively fulfilling its function
- Not effective because of govt majority.
- MPs seldom oppose their own party so Parlt overall are not an effective check.
- LAW MAKING
- Parlt is weak as a law making body.
- Most bills are govt bills, not from individual MPs (govt dominates).
- Parlt has limited ability to reject/amend govt bills. e.g. Select/Standing Committees in practise are packed full of MPs loyal to govt.
- Parlt is not a cross-section of society, e.g. electorate 50% female but HoC only 10% female.
- FPTP system winner takes all.
- HoL is unrepresentative as it reinforces the predominance of the elected party rather than performing its role in scrutinising.
What are the differences between parliamentary and presidential styles of government?
- In a pres. system, those who staff the executive branch are not drawn from legislature as in a parl. system. Instead the President will have much greater freedom in selecting those who will occupy govt posts. They need not even be members of the President’s political party. e.g. Bill Clinton appointed William Cohen, a Republican, as Secretary of Defence.
- In a parl. system the govt is responsible to the legislature and held to account through questions & debates e.g. PMQs. Whereas in a pres. style govt office-holders are answerable to the President. They are not directly responsible to the legislature.
- As a president is not dependent upon a continuing majority in the legislature, he/she cannot be removed from office except (in some countries) through a process of impeachment. Whereas in Britain for example a Vote of No Confidence can be taken.
- Fixed electoral terms and election dates lack flexibility in a pres. style of govt. Parliamentary system generally rests upon flexible rather than fixed electoral terms.
What is collective responsibility what purpose does this serve?
- Private dissent becomes public support.
- Doctrine dictating that members of Cabinet in public must support decision reached made by the Cabinet, even if within Cabinet a member voted against the policy.
- Any who feel they cannot agree with Cabinet decisions must first resign before criticising govt. e.g. Robin Cook.
- Allows govt to present united front to the world.
- Cabinet membership is designed to include representatives of all main factions of party. This means every faction accepts that their point of view was considered and the result is a collective decision.
What are the functions of the Cabinet?
- Central policy-making body where govt forms its policies before Parliament to be made into law.
- Sets agenda for govt policy – who is to speak in a parlt debate, introduction of White Papers to Parlt.
- Ratifies decisions coming from other executive bodies (such as Cabinet Committees). All policy must be “rubber-stamped” by the full Cabinet to be considered official govt policy.
- To decide how much money each Ministry is going to be allocated by the Treasury.
- To resolve an issue that cannot be resolved elsewhere (inter-departmental argument).
- Chief Whip reports on any problems with the party (MPs in Commons) and action is decided upon.
- Dealing with a crisis or emergency where govt needs a united decision. e.g. whether to leave the ERM in 1992.
What are Cabinet Committees?
- Where most party policy is formed and most decisions are made, though they must be ratified in full Cabinet.
- The rule now is that decisions reached in Cabinet Committees are automatically passed in full cabinet without discussion.
- They are composed of a chairman, who may be a Cabinet minister, junior minister or the PM. All the key CCs are chaired by the PM.
- There are two types:
- standing – 27 of these permanent committees which deal with a policy area.
- ad hoc – deal with short term problems e.g. 1984 miners strike
What is a bilateral?
- An informal group meeting of two persons (one of whom is the PM) to decide on an issue outside Cabinet.
- These are becoming increasingly more frequent, replacing Cabinet Committee meetings.
What are Norton’s four ideas on the style of the PM?
- Innovators – PM has personal policy goal he/she wishes to achieve. Party may not support this so PM leads and tries to get the party to follow. e.g. Maggy T dominates Cabinet, gives her view and persuades others to fall into line.
- Reformers – PM has a policy goal supported by the party, so PM can rule using Cabinet collectively. e.g. Clement Attlee & Labour govt 1945.
- Egoists – PM solely concerned with measures that ensure he/she retains power – no long-term ideological goals. e.g. TB – power centralised around PM who bypasses Cabinet in favour of patronage networks.
- Balancers – PMs who take power to prevent party splits and keep the peace within govt. e.g. John Major 1990-97 ruled by collective decision-making. JM often did not let Cabinet know his view for fear of influencing their final decision.
What is Cabinet govt?
- Refers to the system that we, according to current constitutional theory, have in Britain. Cabinet meets to make decisions collectively which represent the views of the parliamentary party.
- As such, it becomes govt policy if supported in the HoC, and has the legitimacy of majority Cabinet support behind it.
- Cabinet members would be expected to publicly support and defend such policies during parliamentary debates. If a minister feels that he/she cannot do this, he/she has the option to resign. The most high profile Cabinet minister to do this in recent years was Michael Heseltine in 1986.
- Another main feature of Cabinet govt is the role of the PM. The PM’s relationship to Cabinet is said to be “prima inter pares” or “first among equals.” However, TB has been accused by some of moving away from Cabinet govt to prime-ministerial govt and of bypassing his Cabinet in favour of decision making by a few favoured individuals.
What are Prime Ministerial powers?
- Those things that the PM can do. The authority given to him by the Royal Prerogative to act in certain areas govt.
What is Prime Ministerial govt?
- When the PM uses these powers to dominate all the other organs of govt through his personal exercise of power. e.g. sideling the Cabinet and bypassing Whitehall by using PM’s addresses to the media.
Does the UK have Prime-Ministerial govt?
- Traditionally British govt is Cabinet govt….. However, doubts have arisen over whether this accurately describes the present state of UK govt.
- PM can control his colleagues through the threat or use of his power of dismissal and can use this to dominate Cabinet. (Tony Benn quote)
- Has substantial powers of patronage which other Cabinet colleagues lack. The present PM controls appointments to Key Committees, quangos, and life peerages in the Lords. He can use all these to ensure loyalty to him or even to influence decisions at all levels of govt.
- The PM has control of Cabinet agenda. TB has used this to limit what is discussed at Cabinet and has reduced the duration of meetings to the same end. In this way Cabinet has been sidelined from important decision-making. Further ministers are not allowed to control Cabinet agenda by circulating their own papers.
- PM has more advice than any other Minster in Cabinet. (Policy Unit, Cabinet Office, Special Advisors). This means he need not merely preside over meetings in Cabinet – he has the information needed to lead the discussion. Nowhere is this more true than with the present PM who has a small army of PAs directly loyal to him.
- PM has prerogative powers – PM is chief maker of foreign policy. This has become more important in recent years as the PM has used his right to involve the UK in foreign policy issues including foreign wars and disputes (Falklands, Gulf War, Bosnia, Rwanda, Maastricht Treaty and EU).
- PM has a media image – personification of govt as he is the centre of media attention. This gives him a status that other Cabinet colleagues do not have. It even leads to the PM acting as a govt spokesman on issues that are actually the responsibility of other Cabinet Ministers. e.g. Foot & Mouth crisis 2001 – PM and not Agriculture Minister answered media questions.
- However, other writers argue that we do not have PM govt.
- Henessey – PM govt is a matter of the aggressive style of Thatcher & Blair. Not all PMs are like this, indeed John Major was a consensus politician. In other words the PM govt model is not permanent – it relies on an individual and Cabinet govt survives it.
- George Jones – “The elastic theory.” The appearance of PM govt is a matter of style. The PM seems to have more power b/c of his prominence in the press, his “presidential” status as a spokesman and his role as the guiding politician fronting UK foreign policy abroad. Despite this, the traditional constraints of *Cabinet govt are still there. The PM still needs:
- the support of backbench MPs
- the votes and support of his cabinet colleagues
- An example of a PM who neglected this to her cost was Maggie T – deposed by her own party.
- Thus the Cabinet model is still there and despite the individual power of a PM can and does reassert itself given right circumstances.
What are the PM’s formal powers (permanent powers that all PMs have by convention)?
- Those exercised by the PM as Leader of the Country (PM is not Head of State, this is the Monarch):
- Head of Armed Forces – decides on direction of overall conduct of armed forces and intelligence services.
- Negotiation of foreign treaties & foreign policy.
- Granting of Honours.
- Appointments of Bishops & Senior Judges.
- Appointment & dismissal of Ministers (Tony Benn saw this as a PM’s most potent weapon).
- Those exercised by PM as Head of Govt:
- Dissolution of Parlt.
- Chairperson of Cabinet.
- Appointment of heads of public bodies e.g. BBC.
What are the PM’s informal powers?
- Chief policy maker – this will be constrained by the party and the Cabinet. However, some PMs can get away with more than others depending on the political circumstances. The stronger the PM’s position the more dominant the style a PM can assume.
- Chief govt spokesperson – at PMQs the PM must defend govt policy before the public and from the criticisms of the opposition.
- Leader of parliamentary party – MPs look to PM for leadership. Some look to him for patronage. He relies on their loyalty to get acts through the House.
- Control over the economy – PM shares this with Chancellor of Exchequer.
How effective are the constraints on the PM?
- May be overruled by Cabinet
- Presence of bilaterals limits Cabinets impact on policy.
- PM can control Cabinet through patronage.
- Prima inter pares is only a convention and can be undermined depending on the style and personality of **PM and political climate.
- PM can be overruled by Parlt
- If PM has a large Commons majority he can control the House, providing the Party support him.
- Shortness of PMQ.
- Party system means Parlt cannot restrain PM.
- Lords of limited effect b/c Parliament Act. Having said that, they can amend, change and send back Bills. e.g. Hunting Bill 1997-2005
- EU & Allies (US & NATO)
- Ultimately due to PS (implied repeal) this alliance can be broken with a single Statute.
- Still presence of veto in making decisions in important areas.
- However, no limits in place to restrict prerogative powers e.g. Parliamentary vote on 18th March 2003 taken after decision to go to war with Iraq had been made.
- Majority of the Party
- Whips ensure that loyalty and “towing the party line” is retained.
- PM can control MPs through patronage, depends on political climate & personality of PM.
- However, now PM has smaller majority of 66 and therefore has to be more careful to represent the views of his party.
What are the two major roles of civil servants?
- Policy advisors – will research into issue, gather research together and condense it into a number of options. This will then be passed to senior civil servant, who will advise minister(s) on policy. The CS thereby speeds up the decision-making process and ensure it remains comprehensive. The minister/Cabinet is, therefore, given a simple choice.
- Central decision-making – senior civil servants can make decisions on behalf Minister. These are decisions that the Minister does not have time to make. e.g. Parliamentary answers – speech written by civil servant, can also sign orders giving Ministerial approval.
What is the idea of permanence in relation to the civil service?
- Civil servants have permanent contracts of employment. They do not lose their jobs when the govt or individual minister changes.
- They also have security of tenure which means that they cannot be dismissed for the advice they give, but only for personal misconduct such as corruption.
- The principle has been eroded by an increasing tendency to remove incompetent officials and by short-term contracts in the executive agencies.
What is anonymity?
- Civil servants are expected to maintain a low public profile and must not reveal the nature of advice that they have given or their precise role in policy-making.
- There has been a slight decline in this principle with senior civil servants taking a more public role in policy issues. They must also appear regularly before select committees of Parlt.
What is neutrality?
- Civil servants must not engage in political activity, especially in political parties.
- They are expected to serve governments of any party with equal care.
- Their advice is expected to be neutral and within the limits of accepted govt policy. This neutrality was placed under threat when Thatcher was PM. She was said to favour officials who shared her commitment, and ensured that they were promoted.
- Similar accusations have been made under Blair. In addition, “temporary” civil servants are used increasingly as advisors. The rule of neutrality does not apply to them.
What is individual ministerial responsibility?
- The principle that the elected minister, whom the civil servant serves, is publicly accountable for what civil servants do or decide.
- Where errors are made, it matters not if they were personally responsible, the ministers take responsibility. This protects the CS who, though he may have made the error, is not politically accountable b/c he is not elected.
- Ministers must account for these mistakes and for any other decisions to Parlt or to Select Committees. *In some cases they will be expected to resign e.g. 1982 Ld Carrington – Falklands War.
- This has been eroded by a succession of ministers refusing to take responsibility and by the “Howard principle” in the 1990s. This stated that ministers are responsible for policies, but civil servants are directly responsible for the way in which policy is implemented and for “operational” problems.
What changes have been made to the civil service since 1979?
- CS has reduced in size: 700,000 in 1980 to 450,000 in 2000.
- The CS used to be a unified organisation. Since 1979 it has been steadily split up. The Ibbs reforms of 1988 or “Next Steps” farmed out many civil service functions to Executive Agencies (e.g. Child Support, Benefit Agency), quangos or contracted to the private sector.
- This trend was increased by the Citizen’s Charter under Major and “best value” under Labour which subjected CS to performance targets and continued the devolution of posts from the central CS to *Executive Agencies (by 1999 ¾ of CS work carried out by these agencies, 2000 – a further 13 were set up).
- Political advisors have grown in number since 1997 and some commentators have argued that PA’s new role alongside CS affects the permanence, anonymity and impartiality of the civil service.
- Though classed as temporary CS the PAs are not neutral and serve the govt and specific Ministers. They are politically partisan and expected to be so. This has led to clashes between CS & PAs e.g. Permanent *Secretary at Treasury Sir Terry Burns resigned in 1998 following reports that he was being marginalised in favour of Treasury Social Advisors led by Ed Balls who was one of Gordon Brown’s PAs.
What is the significance of the Ponting case?
- All civil servants are bound by the Official Secrets Act, and they may not speak to the media or write about their experiences without permission.
- This came about after the Clive Ponting incident during the Thatcher years whereby civil servant Ponting, released to the media that the Argentinean warship the 'Belgrano' may well have been attacked by a *British submarine outside of the exclusion zone imposed during the Falklands War.
- Clearly such information could have been damaging to the government. Ponting argued that he felt it was only right that the public knew the truth. Now, what is made available to the media/public comes from the government alone.
What is the role of the judiciary?
- The Judiciary fulfil an important role within the British political system. Firstly, it is their duty to interpret law, which involves looking to past cases and Statutes, and assessing what application they might have.
- From this, Judges will enforce law by passing sentence within a particular case.
- Law Lords also have a separate legislative role which other Judges do not have. These senior judges are, in fact, making law rather than merely interpreting it; every other court must obey their verdict.
- Judges are also responsible for Judicial Review, action in the High Court to review the decisions of lower courts, tribunals, and administrative bodies.
- Furthermore, judges often sit on government enquiries or chair commissions, for example, Lord Hutton who led the investigation into the circumstances surrounding the death of Dr. David Kelly in 2003-4.
Why is it important for the Judiciary to be independent and neutral?
- Judicial independence and judicial neutrality are subtly different concepts. Independence is the idea that judges must be free of influence applied by politicians. Impartiality/neutrality on the other hand is making sure that a judge’s background and character does not unduly influence his judgement.
- Judicial independence and neutrality are things that we, in Britain, are very keen to see maintained. *Judges must be free to interpret law because they try cases that are of a political nature and must, therefore, be seen to be independent of political bias.
- This is especially true recently with judges being routinely confronted with highly controversial and politically sensitive issues. For example, the law lords were called on to decide whether Pinochet, the *Chilean dictator, was protected by the state immunity act from prosecution for torture.
- Furthermore, judges must be free to rule against the government if necessary and to do this they must be independent.
- The judiciary see it as their duty to enforce Dicey’s Rule of Law. The aim of Dicey’s Rule of Law is to make the law fair and this can only be enforced if the judiciary is independent. Therefore, one of the principles upon which the British political system is based depends upon an independent judiciary.
- The aim of Montesquieu’s ideas on the separation of powers is to ensure that no one person sits in all three branches of government. This means that the judiciary will not be influenced by political ideas by also being involved in either the executive or the legislature.
- This is why there is some controversy over the role of the Lord Chancellor, now the Secretary of State for Constitutional Affairs, because he sits in all three branches of government.
- Another important reason for the judiciary to maintain neutrality is that they are constantly held under public scrutiny due to the nature of the judiciary. Judges come from a very small sector of society but have to pass judgement on all sections of society. Critics claim that the origins of judges means that their judgements unduly favour white MC males. Impartiality must, therefore, be strictly observed in order to disarm this criticism.
To what extent are judges independent and neutral?
- A stress on equality before the law is a fundamental guiding principle for all judges. This implies that they are able to set aside any personal, social or political bias when interpreting law, and make decisions objectively and on the basis of purely legal considerations. Disputes of all kinds can therefore be settled fairly and impartially.
- Judges can be said to be independent through various conventions which have been set up to protect this status. Politicians cannot reduce judges salaries or pensions in order to control the system. Earlier this year, for example, the govt tried to take judges pensions as barristers. However this was abruptly stopped when judges threatened to strike.
- Security of tenure means that judges cannot be dismissed easily. The only way to do this is for both the House of Commons and the Lords to vote a judge out.
- Furthermore, a convention which goes back to the Glorious Revolution in 1688 protects judges from politicians. This convention says that judges decisions cannot be criticised in Parliament.
- Against this theory there may be examples which show that it is not always the case. The argument is that the social and educational background of judges may influence the way that they deal with individuals from groups with which they cannot empathise (such as union members or protesters). A Labour survey in 1997, for example, revealed that 93% of judges were white MC men. However, it could be argued that this situation is self-perpetuating.
- Similarly there may be cases involving national politics, where the judge appears partial e.g trial of Clive Ponting, Hoffman & Pinochet case.
- Judicial decisions have nevertheless become more liberal and less pro-state in recent years. Lord Chief Justice Woolf, for example, is often much more likely criticise the govt in favour of peoples civil liberties.
- There are also other doubts raised about judicial independence to do with system of appointments of senior judges. A shortlist is drawn up, however the Lord Chancellor, now Secretary of State for Constitutional Affairs, can add people to the shortlist. Then the Lord Chancellor and his Dept and the PM make the final decision. The secrecy of the appointments process causes suspicion.
- However, this is merely a worry. There is no evidence to suggest that the decision made is unjust in any way.
What are the Govt’s proposals within the Constitutional Reform Bill?
- Dept. for Constitutional Affairs will take on functions of Lord Chancellor’s department, such as legal aid, civil law and the administration of the court system.
- Criminal law will remain the responsibility of the Home Office – rewieving sentencing and whether to increase or decrease it. e.g. Myra Hinley case, the Home Secretary would not allow her to be released.
- The Department for Constitutional Affairs and the Home Office will implement government reform.
New Supreme Court to replace Judicial Committee of HoL as the highest court of appeal.
- Independent Judicial Appointments Commission to recommend candidates for appointment as judges. *However, the final say of appointment of judges still lies with the PM & Secretary of State for Const. Affairs.
- Scottish and Welsh offices to be merged in the Department for Constitutional Affairs.
What are the arguments for the creation of a Supreme Court?
- Removes the Lord Chancellor and his department and so ends the “fusion” of powers which is so controversial.
- Removes a member of the Executive – the LC – from direct control of judicial appointments. This will reinforce the independence of the Judiciary to perform a vital function in limiting and reviewing the act of the govt.
- Judicial review is v. important b/c judges must be free to find for or against the govt.
What are the arguments against the creation of a Supreme Court?
- People appointed to SC will only be recommended by an independent Judicial Committee, therefore the PM still has the final say.
- Even though the LC’s post has been evaporated, the problem of executive influence has not been address. e.g. the conflict presented by the Attorney General who decides whether cases against govt are brought to trial. He is an MP and a lawyer.
- Home Secretary & Home Office still have control of criminal law proceedings. These were not given, as suggested, to a Ministry of Justice headed by a minister directly responsible to Parlt.
What is Judicial Review?
- It is a means whereby the Judiciary hold the Executive to account. In effect this enables the courts to question the way the Executive puts Acts of Parliament into effect. It allows the Court to review the actions of public agents, such as ministers, and decide whether they acted “ultra vires.”
- JR involves judges in questioning political decisions and thus heightens the importance of their political impartiality.
- Judges may also question any govt acts which are “irrational” or highly unreasonable, or acts which show procedural impropriety.
- Judicial review as a means of questioning govt actions has increased dramatically in the last 3 decades from 87 cases in 1968 to 3848 in 1997.
- Though it is a limited form of scrutiny b/c govt can go back to Parlt and get new powers voted through statute which can overturn the court’s objection.
- The effectiveness of JR is also limited by the reluctance of some judges to allow cases to go ahead. Some grant leave to 80% of applicants and others to 20% of applicants.
What are civil liberties?
- Civil liberties are negative rights, rights that impose restrictions on government power.
- Freedom of association, for example, is the right of an individual to join a group such as a trade union or political party, without interference by the state.
- Other examples of freedoms that protect the individual from arbitrary government interference include freedom of speech, the right to a fair trial and the freedom from unlawful imprisonment.
How do judges protect our civil liberties?
- If an individual believes their rights have been offended under HRA they can call for Judicial Review. A judge can then advise govt to change the law – important b/c it puts govt under political pressure to bring laws into line with HRA. It would make them unpopular with voters not to do so.
- E.g. Judicial Review in 1997 Asylum Seekers & Social Security – judge ruled that Statute did not give govt the power to stop asylum seekers receiving benefits while their cases were being heard.
- HRA can be used by judges as an authority to cancel laws made by Scottish Parlt & NI Assembly where they are incompatible with HRA. These bodies may also be forced to grant individual compensation.
- These three points mean that judges can protect civil liberties more effectively b/c instead of having to appeal to the ECHR, citizens can now have their rights defended in English courts – quicker and cheaper.
- However, the one major weakness of HRA undermines this. PS still applies and so it can be overruled by later acts because it is not entrenched. The wording of the Act shows this; it says that if an Act is going against HRA, Parlt must be told.
These notes are aimed at people studying for Edexcel A Level Politics, module 2.
Originally submitted by mellow-yellow on TSR Forums.