‘Central to the rule of law in a modern democratic society is the principle that the judiciary must be, and must be seen to be, independent of the executive.’
The courts are sometimes referred to as “lions under the throne” of the British Constitution. This expresses how eager the judiciary are to claw at government if they hinder individuals’ rights and liberties. The judiciary takes an oath to dispense justice “according to the laws and usage of this realm, without fear or favour, affection or ill-will”. Whether it dispenses justice on an individual or on the government the judiciary should not fear scrutiny of any action it takes. The Act of Settlement 1700 offers independence and security to High Court judges (and above) who cannot be dismissed by the executive, only by Her Majesty on an address by both Houses of Parliament on circumstances of serious misbehaviour may a judge be removed. Judicial security was later reinforced with the Supreme Court Act 1981 to ensure the judiciary’s independence.
The judiciary must be independent of the executive to perform their functions properly. The judiciary must be seen to be independent and to garner public confidence for judges must be, and appear to be impartial at all times (public confidence deteriorated and the impartiality of judges was questioned in the Pinochet Cases which forced the presiding judges to balance political ethical and moral issues) . Another reason for judicial independence is because of the UK’s unwritten constitution and the fact that there is no Supreme Constitutional Court and all constitutional issue are solved in regular courts. The judiciary must also be free to try cases against the executive without interference. They must also enforce the principle that no one is above the law and every one is to be held accountable to the law even the all mighty executive.
In this paper I will cover the rule of law and its effects on the judicial independence from executive in modern day. Then I will examine the current overlapping between the judiciary and executive and the future proposals and checks in places to insure an independent and impartial judiciary. Finally I will look at the implications of the Human rights Act 1998 and how it acts as a modern day check and balance system to ensure a democratic society.
The rule of Law
“The keystone of the rule of law in England is the independence of judges.” The rule of law is essential to ensure that the judiciary is independent so that they are able to perform their functions and secure a democratic society. Albert Venn Dicey has expressed this view in three key components which make up his concept of the rule of law. Dicey’s principles have influenced the UK democracy even in modern times even though widely criticized by many.
The first principle is “no man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary courts of the land. In this sense, the rule of law is contrast with every system of government based on the exercise by persons in authority of wide, arbitrary, or discretionary powers of constraint;” Dicey believed that individuals should not be subject to wide discretionary powers because wherever there is discretion, there is room for arbitrariness.
Ministers and other executive bodies are often given broad discretionary powers to use as they see fit. But the government of the day should also respect the law. This is illustrated in the case Entick v Carrington  where the defendant had broken into the plaintiff’s premises and seized some papers. The plaintiff brought an action for trespass, but the defendant argued tat he had a warrant issued by the government authorising the trespass and seizure of the papers. The court refused to accept this and decided that as the government lacked any authority to issues warrants, the warrant was illegal. Thus, today, a police officer cannot enter one’s house unless he or she has the owner’s/occupier’s consent or a lawful power to do so.
In contrast is the case of Liversidge v Anderson , where the Home Secretary was empowered under Defence Regulations (issued under the Emergency powers (Defence) Act 1939) to imprison any person if he had ‘reasonable cause to believe’ such a person had hostile associations. Liversidge was detained without trial under the Defence Regulations and sued the Home Secretary for false imprisonment. The House of Lords (4-1) held that the court could not inquire into the grounds for detention, as long as there was no evidence to suggest that he had acted other than in good faith. Thus the Home Secretary’s decision would not be challenged and he could not be compelled to disclose his reasons. Liversidge v Anderson is the model example of the courts failing to challenge the executive’s wide discretionary powers when it comes to matters of national security.
The second principle is that “no man is above the law; every man and woman, whatever be his or her rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals;” This is an expression that all men should be equal under the laws of the courts including any government official and the Prime Minister if acts they perform were seen to be without reason. Jeffery Jowell had a clear perspective on Dicey’s ‘equality of all before the law’ he stated: “…its ghost has refused to rest. It rises still to haunt a minister who publishes ‘guidelines’ that cut across the powers of the statue under which he operates, the minister who penalises local authorities for overspending without giving them a fair hearing, a government department which decides in accordance with a secret code not available to the public, or a Prime Minister who seeks to deprive civil servants of their rights to remain members of a trade union.
The final principle is “the general principle of the constitution (as, for example, the right to personal liberty, or the right of public meeting) are, with us, the result of judicial decisions determining the rights of private persons in particular cases brought before the courts.”
The not so separate ‘separation of powers’
The government consists of three separate organs or bodies the legislature, the executive and the judiciary. The doctrine of Separation of Powers states that each body of government should have their own distinction functions in which they perform and that each should act as a check for the other this was expressed in the French Declaration of the Rights of Man 1789: “Any society in which the safeguarding of rights is not assured, and the separation of power is not observed, has no constitution.”It is clear that while the United Kingdom seeks a separation of powers, government bodies tend to over step there functions form time to time.
The common law and statues have provided for government interference with the judiciary but the most flagrant overlapping of separation of power in the UK government was held by the office of the Lord Chancellor (prior to the Constitution Reform Act 2005). Traditionally the Lord Chancellor is a member of all there organs of government. He is a member of the executive and sits in the cabinet, he is head of the judiciary thus presides over the House of Lords and can exercise judicial functions. The Lord Chancellor is also a member of the legislature because he is a member of the House of Lords. The Lord Chancellors breach of all three bodies of government which clearly defied Montesquieu principle of the separation of powers.
Baron Montesquieu stressed that each organ of government should perform there function without interference of the other and stressed the importance of the independence of the judiciary he stated: “When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty ….Again, there is no liberty if the power of judging is not separated from the legislative and the executive. If it were joined to the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would then be the legislator. If it were joined to the executive power, the judge might behave with violence and oppression. There would be an end to everything if the same man or same body, whether of the nobles or of the people, were to exercise those three powers, that of enacting laws, that of executing public affairs and that of trying crimes or individual cause.”
Lord Bingham in contrast to Montesquieu describes the overlapping that exists between the organs of government as components to a democracy. He states: “Whatever overlap there may be under constitutions on the Westminster model between the exercise of executive and legislative powers, the separation between the exercise of judicial powers on the one hand and legislative and executive powers on the other is total or effectively so. Such separation, based on the rule of law, was recently described … as ‘a characteristic feature of democracies’.” Lord Bingham views that it is essential to have overlapping for a democracy to work effectively but the judiciary should be separate.
The executive have enormous powers which they have exercised in the passed and the judiciary did not interfere this is called prerogative power “…Every act which the executive government can lawfully do without the authority of an Act of Parliament…” but with the landmark GCHQ Case the House of Lords stated they can review any executive matter even if the powers were that of prerogative. This principle that was put to the test in the case of M v Home Office where the House of Lords ruled that judicial review cannot be against the Crown however a minister or officer acting on behalf of the Crown is subject to judicial review. The case involved a Zairian citizen seeking political asylum, his claim was rejected and judicial reviewed denied by Home office. Before his departure solicitors brought fought new grounds for review. The man was removed while he awaited his application for review and the judge ordered him brought back. The Secretary of state for the Home Department ignored the order and cancelled his flight. This was a flagrant disrespect to judicial authority and a breach of executive duty.
On appeal Lord Woolf expressed: “I do not believe there is any impediment to a court making such a finding [of contempt], when it is appropriate to do so, not against the Crown directly, but against a government department or a minister of the Crown in his official capacity.”
The judiciary must be independent of the executive because of the need to keep the executive within scope. So when it was expressed by the Secretary of State for Home Affairs that: “I have been frustrated at the inability to have general conversations of principle with law lords… because of their sense of propriety. I do find that frustrating. I have never met any of them. I think there is a view that it’s not appropriate to meet in terms of their integrity. I’m not sure I agree…and I regret that. I think some dialogue between the senior judiciary and the executive would be beneficial, and finding a channel is quite important.” Lord Steyn stressed that the public depended on the judiciary being impartial because if their rights are infringed upon by the executive the judiciary needs to be seen as a separate body. Lord Steyn: “I must, however, point out that ministers do not always understand the principle of the separation of powers so far as it affects the judiciary… Law Lords and Cabinet Ministers are not on the same side. In public interest the principle of the separation of powers requires that it should be so. A cosy relationship between Ministers and Law Lords would be a worrying development.”
While the judiciary should be independent it should be noted that there is also a need for checks on the judiciary as well. There have been controversies over the principle that the judiciary simply apply the law and not make it, especially in the areas of criminal law because it contravenes Parliamentary Supremacy. So when the judiciary resurrected the offence of conspiracy to corrupt public morals in Shaw v DPP a case involving the publication of a women’s directory that included the listing of prostitutes and their services then later in R v Knuller Ltd the House of Lords affirmed the decision of the Shaw case there was uproar of judiciary overstepping their functions. The courts have since created the offence of outraging public decency in the case of R v Gibson to cover the ear-rings taken from freeze-dried human foetus which were displayed in a gallery. In 1976 the Law Commission recommended that the offence of outraging public decency should be abolished and it would suggest in the report that these common law offences were too vague and would have difficulty in reconciling with the rule of law which demands a certainty in the law.
Trying to Ensure an Independent Judiciary the Checks and Balances
There are three grounds for judicial review illegality under which the courts act as “a guardian of Parliament’s purpose and may strike down official decisions which violate that purpose.” The grounds of procedural impropriety are to make sure that a decision maker grants the applicant a fair hearing. And irrationality which lends itself to what is unreasonable. Nevertheless it is important that judges are able to review case against authorities under these principles. Theses principles give certainty to the law and an individual the access to the courts. In essence judicial review is a restraint that up holds the rule of law.
Constitutional Reform Act 2005
The Constitutional Reform Act 2005 is a move towards a clear separation between the judiciary and the executive powers. It is a proposal to reform some of the historical overlapping that have created irregularity in light of the Human Rights Act 1998 who requirement for judicial independence under Article 6 of the ECHR which is constantly being violated.
These key reforms are not enacted as yet but when enacted government ministered will have to by law uphold the independence of the judiciary and will be barred from influencing judicial decisions. This upholds Dicey’s Rule of Law. The Judicial Committee of the House Lords will be replaced by a new Supreme Court which will be separate from Parliament. The Supreme Court will boost its own staff, budget, building, and judges will be independently appointed. Judicial appointments will be left to the hands of the office of the Secretary of State for Constitutional Affairs.
The Constitutional Reform Act 2005 has modified the role of the Lord Chancellor drastically the first bill to abolish the role completely was rejected and the role was change to the Secretary of State of Constitutional Affairs a position that will not be a member of the Supreme Court. The judicial functions which were performed by the Lord Chancellor will now be performed by the new position of the President of the Courts of England and Wale a position which the Lord Chief Justice will absorb. It should be noted that even though the office of the Lord Chancellor have been reformed it has not been abolished.
Implications with the Human Rights Act 1998
Dicey’s view on residual rights for modern day UK depends on that of a narrow view in that Parliament would be a check for the executive power and that the judiciary would not fear to impose laws against any public authority who sought to infringe on individual’s liberties. Executive powers have grown enormously and has led to the assumption that neither Parliament nor the judiciary are effective to ensure they keep within scope this is because of the passing of legislation that encroach on civil liberties such as the Anti- Terrorism, Crime and Security Act 2001and the Criminal Justice and Public Order act 1994. Before the incorporation of the European Convention of Human Rights in to domestic law Lord Bingham expressed that the judiciary was powerless to protect fundamental rights in the absence of a higher law he sated: “The elective dictatorship of the majority means that, by and large, the government of the day can get its way, even if its majority is small. If its programme or its practice involve some derogation from human rights Parliament cannot be relied on to correct this. Nor can judges. If the derogation springs from statues, the must faithfully apply the statute. It is a result of administrative practice, there may well be no basis upon which they can interfere. There is no higher law, no frame of reference, to which they can properly appeal”
The Human Rights Act 1998 respects the doctrine of parliamentary supremacy. But now judiciary have the power to fight for individuals civil liberties under section 3 of the HRA1998 But Article 6 (1) made it clear that the judiciary need to be independent both of the House of Lords in Parliament and the Lord Chancellor. But individuals rights continue to be breach under article 6 by the over mighty executive who continually over step there boundaries for example in the case of R v Secretary of State for the Home Department Anderson  the House of Lords made a declaration o incompatibility with Convention under article 6. In this case it questioned the Home Secretary’s ability to decide minimum periods of imprisonment for murder on the fact that he was a politician and it did not provide for a fair trial because such a decision should be made by an independent and impartial tribunal.
“The Rule of Law is a necessary principle in a constitutional democracy, but it is not the only such principle.” The principle of a separation of powers stresses the importance of judiciary independent from the executive is essential to a modern democracy. The coming Human Rights Act 1998 especially section 6 (1) article 6 (1) ECHR and section has act as a form of restraint on public authorities and even judges in scope.
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