Discover The Facts

The judiciary is traditionally thought of as the ‘third branch’ of government, along with the executive and legislature.  The term ‘judiciary’ means the Courts and the Judges who preside over them.  The courts resolve disputes, uphold the law (both civil law and criminal law) and protect people’s liberties.  Parliament is said to make the law, the courts to apply and interpret it.  But this can be an oversimplification.  The courts also make law through common law decision-making, and even the interpretation of statutes involves the weighing and balancing of substantive values.

The judiciary is given ‘judicial independence’ - they are protected in various ways so that they are not influenced by the Government, Parliament or external interest groups.  This ensures that the judiciary makes decisions impartially and applies the law equally to all without favour.

In recent years, the judiciary has become more active in scrutinising executive and parliamentary action to ensure compliance with the Rule of Law.

 

The judiciary is fundamental to our representative democracy.  It provides an essential check on the other branches of government by ensuring their actions are consistent with the rule of law.

A major change to the structure of the judiciary has recently been made by the introduction of the new Supreme Court.  The way in which the creation of this new court of final appeal will impact on our constitution is not yet fully known.

1701

Act of Settlement stated that judges maintained office on good behaviour, and could only be removed with the assent of both Houses of Parliament

1707

Act of Union with Scotland; but Scotland retains its own separate legal system

1876

Appellate Jurisdiction Act passed - regulating appeals and appointments to the Appellate Committee of the House of Lords

1950

UK signs and ratifies European Convention on Human Rights

1966

UK allows British citizens to take individual petitions to the European Court on European Human Rights

1985

in the GCHQ case the House of Lords hold that the royal prerogative can be reviewed by the courts

1990

in the Factortame case the House of Lords hold that British courts can overturn domestic legislation on the basis that it is incompatible with EU legislation.

1998

the Human Rights Act

2005

Constitution Reform Act passed - begins shift of jurisdiction of Appellate Committee of House of Lords to the UK Supreme Court, to be completed in 2009; established Judicial Appointments Commission for English and Welsh courts; greatly reduced the judicial role of the Lord Chancellor

2009

Supreme Court opens

For much of the 20th century, the judiciary was a relatively invisible aspect of the British constitution.  Courts deferred to Parliament because it was argued that Parliament was sovereign and democratically elected; the courts were not.  Governments - particular Labour governments - tended to be suspicious of the judiciary as conservative and illiberal, not trusting them to comply with a government’s policies and programmes.

However, in recent years, the judiciary has become more willing to scrutinise executive action, particularly in the absence of other checks and balances within the UK constitutional order. It has done this mostly through judicial review - examining Government decisions for legality and process.  The enactment of the Human Rights Act 1998 gave the judiciary another means of doing so, as well as providing a more explicit statement of the rights of British citizens.

However, many are sceptical of the role of the judiciary as guardians of the British constitution.  They point to the judiciary’s unrepresentative nature - mostly white, highly educated, middle-class men, who are often thought to be conservative and with narrow life-experience, a rather uneven history of defending liberties and constitutional matters.  These factors and the fact that the judiciary can only respond to the cases brought before them give critics cause for concern.  Others worry that the elevation of the judiciary to status of constitutional guardians will bring the judiciary into conflict with the executive and the legislature, and energies would be better focused on remedying the imbalance between Executive and legislature. † More

 

The Legal Systems of the UK

The UK does not have a unified legal system.  Instead, there are three jurisdictions: England and Wales; Northern Ireland; and Scotland. England, Wales and Northern Ireland have a common law legal system.  A common law legal system is one in which the law is developed by the courts through judicial decisions, or ‘case law’.  The judiciary is empowered to determine cases on the basis of statute and precedent.  This is in contrast to a civil law legal system, in which the law is collected and organised in a code.  Scotland’s legal system is a hybrid of common law and civil law. † More

However, at the apex of the UK’s legal system lies the Supreme Court, which acts as the UK’s highest court of appeal on all matters except Scottish criminal cases.

One distinction often made within a legal system is between criminal law and civil law.  Criminal law covers acts and failures to act considered serious enough that the state itself will prosecute and punish offenders; civil law deals with acts and failures to act between individuals and groups, and covers such areas as contract, property and tort law.

Constitutional law, or public law, deals with matters touching upon the exercise of public power, and is very broad, covering such matters as elections, to violations of human rights, to relations between state institutions.  The basis of constitutional law is a mixture of statute, case law, convention (or practices), European law, treaties and international law.  Generally speaking, the vast majority of cases coming before the courts do not involve fundamental constitutional questions.

 

The Sources of Law for the UK Legal System

Statutes

These are laws passed by Parliament. Generally speaking, statutes are the highest form of law in the land.  The royal prerogative, common law, or convention must all give way to statute. † More

The Common Law

This is the law developed incrementally by the courts through cases.  Common law has largely been overtaken by statute law. However, it is still an importance source of law. † More

European Law

The UK’s accession to the European Communities Act 1972 meant that in many areas UK law is now subordinate to European law; judges are bound by and required to give effect to European law, and decisions of both the European Court of Justice and the European Court on Human Rights.

International Law

This is law developed by international courts and tribunals, lawyers and governments, and consists of treaties, customs and cases. Although often international law will only apply where the UK explicitly agrees to its application (for instance, by signing and ratifying treaties), international customary law is automatically part of UK law.

 

The Structure and Composition of the Courts

Recent Change

In 2003, the Blair government suddenly announced it would abolish the office of the Lord Chancellor, head of and spokesman for the judiciary. This was followed in 2004 with the Constitutional Reform Bill, which not only attempted to abolish the office but also, amongst other things, to establish a Supreme Court for the UK.  The Constitutional Reform Act 2005 (CRA) which was eventually enacted :

• Greatly reduced the judicial role of the Lord Chancellor
• Made the Lord Chief Justice the head of the English and Welsh judiciary
• Established a Judicial Appointments Commission for England and Wales, responsible for recommending appointments to various judicial offices
• Established an ombudsman for judicial appointments and conduct
• Created a new UK Supreme Court, which opened in 2009.

The stated aim of the CRA was to remove some of the anomalies of the British constitution as they related to the judiciary and the separation of powers.  The judicial role of the House of Lords as the final appeal court in the UK has ended.  This role was performed by 12 Law Lords, known as Lords of Appeal in Ordinary.  The former Law Lords, most of whom have become the first justices of the 12-member Supreme Court, are disqualified from sitting or voting in the House of Lords.  When they retire from the Supreme Court they can return to the House of Lords as full Members but newly-appointed Justices of the Supreme Court will not have seats in the House of Lords.

Since the bodies created by the CRA are new and largely untested there is some uncertainty about how they will operate in practice.

Hierarchy of the courts

There is a hierarchy of courts In England and Wales:  Cases commence in the lower courts, and a party to an action can only apply for appeal of his case to the Court of Appeal if he or she can find a legitimate basis.† More

† More

At the apex of the UK legal system as the second, and final, court of appeal is the UK Supreme Court, which commenced operation in October 2009. † More

It hears appeals on points of law of public importance, for the whole of the United Kingdom in civil cases, and for England, Wales and Northern Ireland in criminal cases.  Additionally, it will hear cases on devolution matters under the Scotland Act 1998, the Northern Ireland Act 1988 and the Government of Wales Act 2006.† More

Hierarchy of judges.

There is also a hierarchy of judges.

Superior judges

The superior judges are those who sit in the higher courts such as the Supreme Court, the Court of Appeal and the High Court.

Senior judges

Senior judges are those who not only have a judicial post but also an administrative role.  This category includes the President of the UK Supreme Court, the Lord Chief Justice (who is the head of the English and Welsh judiciary; the Lord President is the Scottish equivalent), the Master of the Rolls (head of the Court of Appeal), and the heads of divisions of the High Court. 

Inferior judges

These are judges who sit in the lower courts, and include Circuit Judges, Recorders and District Judges.

Magistrates 

Magistrates are volunteers who deal with around 95 per cent of all criminal cases in England and Wales in the Magistrates Courts. Dealing with less serious criminal cases and civil matters, three magistrates sit together as a ‘bench’.  They decide and pass judgement with help from a trained legal advisor, on whether someone accused of a crime is guilty. † More

Senior and superior judges have an unlimited jurisdiction — that is, their power to hear cases is not determined by statute but by the common law.  The jurisdiction of inferior judges is defined by statute, and it is in this sense, therefore, that they are ‘inferior’.

As a result of the Constitutional Reform Act 2005, the Lord Chief Justice, rather than the Lord Chancellor, is now the head of the English and Welsh judiciary. † More

The Lord Chief Justice is responsible for administration of the English and Welsh judiciary, and representing their views to Parliament and Government—all previously the duties of the Lord Chancellor.

 

Judicial independence

Judicial independence is a fundamental tenet of the British constitution.  The judiciary is kept independent from both the control and influence of the executive and the legislature so that it is able to make impartial decisions.  This ensures that everyone will get a fair hearing, and that no one — not even the government — is above the law.  It also encourages trust in government.

In addition to the explicit duty of Ministers to uphold judicial independence under the Constitutional Reform Act 2005, a number of mechanisms operate so as to preserve the independence of the judiciary.

Judicial Appointments

In 2005 the Constitutional Reform Act established a Judicial Appointments Commission (JAC) for England and Wales, responsible for selecting candidates for almost all judicial offices, except for the UK Supreme Court.  The JAC consists of 15 commissioners, 12 of whom are appointed by the Lord Chancellor through open competition, 3 of whom are chosen by the Judges’ Council.  The chairman is always a layman – that is a non-lawyer; of the other 14 commissioners, 5 must be judicial, 5 must be laymen, and the remainder must be drawn from the legal profession, tribunals and magistracy. † More

Generally speaking, the JAC is required to select candidates on the base of merit and good character, but also to have regard to the objective of encouraging diversity within the judiciary.  In practice, ‘merit’ is likely to include long experience of court work, as a barrister or as a solicitor. Part of the JAC’s role is to respond to longstanding concerns about diversity within the English and Welsh judiciary.† More

The JAC has already devised various procedures and guidelines for its selections processes, but ultimately a committee of commissioners makes the final decision on whom to recommend to the Lord Chancellor.  The Lord Chancellor has the power to accept or reject the recommendation, or ask the Commissioners to reconsider the recommendation.  The Lord Chancellor cannot select an alternative candidate.

It is the Lord Chancellor who has the final say on who will be appointed. † More

There is also a procedure for complaints a bout the appointment process.† More

Judicial appointments for Scotland and Northern Ireland are made through the Judicial Appointments Board for Scotland and the Northern Ireland Judicial Appointments Commission respectively.  These bodies are constituted in a similar manner to the JAC, with both judicial and lay members, and with a remit to recommend candidates based on merit but having regard to encourage diversity.† More

Appointments to the Supreme Court are decided by a different process.  A selection commission is formed by the Lord Chancellor when vacancies arise.  This is composed of the President and Deputy President of the Supreme Court and members of the appointment bodies for England, Wales, Scotland and Northern Ireland.  All new judges appointed to the Supreme Court will not be members of the House of Lords; they will become Justices of the Supreme Court.  The commission makes one recommendation to the Lord Chancellor, who, after further consultation, may notify the Prime Minister and accept the recommendation, reject it, or ask the commission to reconsider.† More

Removal of judges

Superior judges can only be removed from office by a strict process † More

However, inferior judges have less protection as the procedures for their removal are slightly less strict.

Judicial immunity

The judiciary is almost entirely immune in common law and statute law from being sued or prosecuted for acts done in a judicial capacity.   There is a convention, occasionally broken, that the judiciary should not be publicly criticised by the government. This goes both ways: the judiciary is meant to remain neutral, and generally does not comment on politicians or everyday politics.

† More

Separation of the powers of the judiciary and the state

The separation of the powers of the legislature, the executive and the judiciary is said to ‘run like a thread through the British constitution.’ † More

The extent to which those powers have been truly separate in the past has been the subject of some debate.  One of the guiding principles behind the introduction of the reforms contained in the Constitutional Reform Act 2005 was to make clearer that separation; by formally separating the final court of appeal from the legislature, by taking the Supreme Court out of the House of Lords, and by amending the role of the Lord Chancellor, who has in the past been a member of all three branches of government, being a Government Minister who sat in the House of Lords, but also head of the judiciary.  However, the Lord Chancellor remains the person with the ultimate control over who may be appointed to the judiciary, even if he is no longer the head of the judiciary and he owes his own appointment to the Prime Minister, under the exercise of prerogative powers.  At present the Lord Chancellor is also the Minister of Justice, so there may yet be an extent to which the separation of powers may be said to be blurred.

Throughout much of the twentieth century, judges have often been appointed to head or chair commissions and inquiries, which may also have the effect of blurring the line between executive and judiciary.† More

In practice, the judges who collectively form the judiciary remain separate from the Government and parliament, and are free to deliver judgments free from political interference and few suggest otherwise. Nevertheless, the impact of the creation of the new Supreme Court remains untested.  Several senior figures, Lord Neuberger and Lord Collins included, have suggested that Supreme Court judges may feel freer to challenge Parliament, leading towards a system more similar to that which exists in the United States of America.

 

Function and Roles

The key function of the judiciary is to resolve disputes and carry out the administration of justice. However, the judiciary also has a special constitutional role, which is to ensure state compliance with the rule of law and to protect the liberties of the people. † More

Judicial review

The courts are able to supervise government and administrative action by judicial review.  If a government decision or action is illegal, procedurally improper, disproportional or irrational, the courts can overturn the decision or require the decision-maker to revisit the issue.  Judicial review is concerned more with the legality and process of a decision, rather than its substance.  At its barest, judicial review is based on the principle that no body may act outside the powers granted to it † More

Judicial review, or administrative law, emerged in the 1960s, and accelerated in the 1980s as a major means of scrutinising executive action.  The judiciary came to be seen as a key safeguard of legality and liberty in a constitution that favoured strong government and was weak in checks and balances.  Judicial review, however, does not threaten Parliament’s sovereignty: in general it does not evaluate the substance of the law in question, but only how the law is applied.† More

The Human Rights Act 1998

The Human Rights Act 1998 incorporates the 1950 European Convention on Human Rights (ECHR) into UK law.  The ECHR was drafted by the Council of Europe in the wake of the Second World War, with the UK as a key participant and instigator of the Convention. † More

The ECHR established a Commission of Human Rights and a European Court of Human Rights to enforce Convention rights.  Citizens of countries signing up to the ECHR could make an individual petition to the Court in Strasbourg, France, after exhausting their own countries’ appeal process, and getting permission from the Commission.

The UK signed and ratified the ECHR in 1951, but it was not until 1966 that British citizens could take an individual petition claiming violations of Convention rights to the Strasbourg Court. † More

However, this was an extremely lengthy and costly process; and it seemed odd that British citizens had to go to Strasbourg for vindication of their rights.  By 1997, the European Court of Human Rights had held that the UK had violated human rights in 50 of 98 cases referred to it. Many of these cases related to conditions in Northern Ireland.

The passing of the HRA in 1998 allowed British citizens to go to British courts to make claims of violation of their Convention rights.  These rights include the freedom of expression, freedom from torture, the right to freely associate, the right to a fair trial, and a right to respect for private and family life.† More

Some rights are absolute, such as the freedom from torture.  Other rights are limited - such as the right to liberty, which may be limited in circumstances specifically set out in the Convention itself (for instance, a lawful arrest or detention).  Finally, some rights are qualified - such as the freedoms of expression, association, and right to religious belief.  These can be qualified by legislation if done to secure an aim set out in the article, and is ‘necessary’ in a democratic society - necessary meaning the qualification must secure a legitimate aim and be proportionate to the aim being pursued.

 

All ‘public authorities’ are required to comply with the HRA.  There are three key means of ensuring this:

• The Minister introducing proposed legislation must make a written statement about the bill’s compatibility with the HRA.
• The courts must, as far as possible, interpret the legislation in question to ensure compatibility with Convention rights.
• Where legislation cannot be so interpreted, the courts are empowered to make a ‘declaration of incompatibility’. However, the legislation in question remains, and will not be affected by such a declaration.

 

Thus, unlike the courts in the US, courts in the UK do not have the power to strike down primary legislation and make them invalid on the basis that they are ‘unconstitutional’.  In this way, parliamentary sovereignty is preserved: only Parliament can change the law. However, it is worth noting the courts can invalidate secondary legislation, and any law passed by the devolved legislatures of Scotland, Wales or Northern Ireland, if it should be incompatible with Convention rights. † More

From 2000 till January 2009, there have been 17 declarations of incompatibility.  Of these, 14 have been remedied; remedies for the remaining three are still being discussed.  In short, governments have taken notes of the courts’ actions, and acted to resolve inconsistencies. † More

But the impact of the HRA cannot be measured simply by the number of declarations of inconsistency.  The courts have also interpreted legislation so that as much as possible it will accord with the rights contained within the HRA.

One effect of the HRA is that it encourages the judiciary to make explicit judgements about the substance of legislation; this is not to say judges did not do so before, but they tended to mask their views in obtuse language.  In this way, some think of the HRA as a break with the traditional idea of the judiciary as ‘neutral’, and reinforce the idea that they are ‘political’. † More

European law

The extent to which British membership of the European Union impacts on English law remains the subject of some considerable debate.  English judges have found in a number of cases that where English law is incompatible with European law, then the European law or directive will take precedence.  † More

With the creation of a new Supreme Court, whose express purpose is to separate still further the functions of legislature and judiciary, it remains to be seen whether the new court will feel at liberty to strike down a wider range of UK legislation and to give greater precedence to decisions of the European governing bodies than to the British parliament.

 

Joint Committee on Human Rights A Bill of Rights for the UK? (HL 165, HC 150, 2008)

http://www.publications.parliament.uk/pa/jt200708/jtselect/jtrights/165/165i.pdf

 

The Governance of Britain: Judicial Appointments

http://www.justice.gov.uk/consultations/docs/cp2507.pdf

 

Liberty (National Council for Civil Liberties)

http://www.liberty-human-rights.org.uk/

 

Justice (an independent legal human rights organisation)

http://www.justice.org.uk/enterb/index1.html

 

The Convention on Modern Liberty

http://www.modernliberty.net/

 

The Law Society

http://www.lawsociety.org.uk/home.law

 

The Governance of Britain: Judicial Appointments

http://www.justice.gov.uk/consultations/docs/cp2507.pdf

 

Comments by the Law Society of England and Wales January 2008

 

 

Sources and Further Reading

Robert Stevens The Independence of the Judiciary: A View from the Lord Chancellor’s Office (Clarendon Press, Oxford, 1993)

 

JAG Griffith The Politics of the Judiciary (fifth edition, Fontana Press, 1997

 

Francesca Klug Values for a Godless Age: The History of the Human Rights Act and Its Political and Legal Consequences (Penguin Books, London, 2000)

 

David Feldman “Civil Liberties” in Vernon Bogdanor (ed) The British Constitution in the Twentieth Century (Oxford University Press, Oxford, 2003)

 

Anthony King The British Constitution (Oxford University Press, Oxford, 2007)

 

Rodney Brazier Constitutional Reform: Reshaping the British Political System (third edition, Oxford University Press, Oxford, 2007)

 

Vernon Bogdanor The New British Constitution (Hart Publishing, Oxford, 2009)

 

House of Lords Select Committee on the Constitution Relations between the Executive, the Judiciary and Parliament (HL 151, 2007)

http://www.publications.parliament.uk/pa/ld200607/ldselect/ldconst/151/151.pdf

 

Treasury Solicitor’s Office The Judge Over Your Shoulder

http://www.planning-inspectorate.gov.uk/pins/agency_info/complaints/judge_over_your_shoulder.pdf

 

House of Commons Library “Judicial Appointments”

http://www.parliament.uk/commons/lib/research/briefings/snha-04717.pdf

 

Ministry of Justice A Guide to the Human Rights Act 1998

http://www.justice.gov.uk/guidance/docs/act-studyguide.pdf

 

House of Commons Library “Background to Proposals for a British Bill of Rights and Duties”

http://www.parliament.uk/commons/lib/research/briefings/snpc-04559.pdf

 

Key websites

The UK Supreme Court website

http://www.supremecourt.gov.uk/

 

Ministry of Justice

http://www.justice.gov.uk/

 

Judiciary of England and Wales website

http://www.judiciary.gov.uk/index.htm

 

Scottish Courts website

http://www.scotcourts.gov.uk/index.asp

 

Judicial Appointments Commission

http://www.judicialappointments.gov.uk/

 

Judicial Appointments Board for Scotland

http://www.judicialappointmentsscotland.org.uk/judicial/CCC_FirstPage.jsp

 

Judicial and Court Statistics

http://www.justice.gov.uk/publications/judicialandcourtstatistics.htm