UK Law Articles
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Lord Chancellor's Department
Press Notice
20 April 1999
JUDGES ON THRESHOLD OF ENHANCED ROLE
"The Human Rights Act will form a catalyst that will further fuel the
ongoing development of the constitutional function of British
courts. It will concentrate attention, more than ever before, on the
judiciary's role as the guardian of individuals' rights; this, in
turn, will further strengthen the constitutional basis on which the
courts approach the interpretative process."
This formed part of the Paul Sieghart memorial lecture, delivered by
the Lord Chancellor, Lord Irvine on the increasing constitutional
role of judges and courts in interpreting legislation.
The Lord Chancellor underlined and defended the unique constitutional
position of judges; independent of Government, but helping to shape
the law.
"Judicial independence is a fundamental article of Britain's
unwritten constitution. It is a critical aspect of the doctrine of
separation of powers. In their own sphere the judges are
independent, free of executive influence or control.
"There is no higher duty of the office I occupy than to ensure from
within Government that judicial independence is both respected and
maintained absolutely. And, as you know, under our arrangements,
the fulfillment of that duty is strengthened and supported by my
separate, but related, roles as Cabinet Minister and Head of the
Judiciary.
"So, Judges are independent of Government, with an absolute power
over the decisions within their own courts, which can only be
overturned by the equally absolute decisions of senior judges in
higher courts. In return, the trust we place in our judiciary is
that they will carry out their duties impartially. Judicial
impartiality, which I would define as the absolute recognition and
application by judges of an obligation of fidelity to law, is the
quid pro quo from the judiciary for the guarantee from the state of
their judicial independence in their distinct sphere within the
separation of powers.
"But just as judicial impartiality is the other side of the coin of
judicial independence, so open justice as witnessed by an attentive
media is a strong spur to judicial impartiality in practice. And
each element in this trinity is especially highlighted in a period in
which the importance of public law adjudication in the United
Kingdom
The Lord Chancellor stressed that the constitutional process taking
place in the United Kingdom is being mirrored around the world, and
in his lecture touched on judicial experiences in Canada, Hong Kong,
New Zealand and South Africa. Referring to the domestic picture, he
said "It is the task of translating the text of the European
Convention on Human Rights into principles of domestic law upon
which British courts will soon embark. This will also take centre
stage when our courts begin to exercise a more substantive public
law jurisdiction as the new millennium dawns."
The Lord Chancellor considered that the judiciary in determining
their new role, would build on their experiences of the judicial
review process, under which the actions and powers of Government and
its bodies are challenged in the courts.
"The expansion of judicial review must be understood within a broader
constitutional setting. The explosion of regulatory power and the
consequent decline in Parliament's capacity to provide a
satisfactory check on the executive led to a reconceptualisation of
the judicial role. The courts are now regarded as an integral and
central part of a broader constitutional mechanism which secures
responsible government."
However, while the courts will play an increasing role in
interpreting legislation, the Lord Chancellor stressed that the
Human Rights Act did not "confer on the courts a licence to rewrite
existing law. That is a task for Parliament and the executive."
The Lord Chancellor concluded that in his experience the courts had
demonstrated their tact and skill in balancing their judicial and
constitutional roles.
"In their development of public law to date, courts have demonstrated
a healthy understanding both of their role and of its limits. The
task which they will shortly face, as they begin to apply a set of
written constitutional rights, is a difficult one; yet it is, without
any doubt, one that is well worth undertaking, and to which - I am
confident - our judges will rise with characteristic pragmatism and
sound judgment."
