The UK constitution: the Judiciary Flashcards
What is the role of the Judiciary?
The role of the judiciary can be summarised as follows:
- To determine the outcome of legal disputes between individuals (natural or legal persons).
- To decide the appropriate punishment in criminal cases.
- To interpret the proper meaning of legislation.
- In the case of the Administrative Court, to determine, through judicial review, whether the government has lawfully exercised its powers. The Administrative Court is where most public law claims begin. (Appeals lie to the Court of Appeal (Civil Division), and ultimately the Supreme Court.)
This last function, judicial review of the government’s exercise of its powers, will be one of the main focuses of your studies in Public Law.
What was the Constitutional Reform Act (‘CRA’) 2005 designed to do?
It was designed to address concerns that the separation of powers between the judiciary and the other two bodies of state was blurred.
One example of this was that, prior to the 2005 Act, the Lord Chancellor was the head of the judiciary, a government minister and also the presiding officer in the chamber of the House of Lords (the equivalent of the Speaker). Until the 1990s he also acted as a senior judge as one of the ‘law lords.’
The 2005 Act brought in the following key changes:
• Reformed the office of the Lord Chancellor, so that judicial functions have largely been taken over by the Lord Chief Justice.
• Established the Supreme Court, as a separate entity from the Appellate Committee of the House of Lords (which had previously been the most senior UK court).
• Created the Judicial Appointments Commission for the appointment of judges. Prior to this, the monarch had appointed judges on the ‘advice’ of the Lord Chancellor.
Who is the Lord Chancellor?
The King appoints the Lord Chancellor on the advice of the Prime Minister. There are statutory restrictions on who the PM can recommend for appointment.
The Lord Chancellor is now responsible for the administration of the court system, and also holds the post of Secretary of State for Justice although this dual role has been subject to some criticism.
There are statutory safeguards to prevent excessive influence by the Lord Chancellor over judicial decision-making:
• The Lord Chancellor has a legal duty to uphold the independence of the judiciary (s. 3(1) CRA 2005).
• The Lord Chancellor must not seek to influence particular judicial decisions through any special access to the judiciary (s. 3(4) CRA).
Who is the Lord Chief Justice?
The Lord Chief Justice is appointed by a special panel convened by the Judicial Appointments Commission. Appointments are generally made from the ranks of current Court of Appeal judges.
The Lord Chief Justice is the Head of the Judiciary of England and Wales, and the President of the Courts of England and Wales.
The key responsibilities of this office are:
• Representing the views of the judiciary of England and Wales to Parliament and government.
• The welfare, training and guidance of the judiciary of England and Wales. (The provision of resources for the judiciary are allotted by the Lord Chancellor).
• The deployment of judges and the allocation of work in courts in England and Wales.
When judges are ‘sworn in’ (the formal ceremony that takes place before they can begin work as a judge), they swear two oaths:
The first oath is allegiance to the sovereign.
The second is the ‘judicial oath’, which contains the following words:
“I will do right by all manner of people after the laws and usages of this realm, without fear or favour, affection or ill will”.
The judicial oath references two key constitutional principles:
- Judgment according to applicable law (“after the laws and usages of this realm”)
Impartial and independent judgement (“without fear or favour …”)
There are some government acts (usually carried out under the exercise of prerogative power) which have long been seen as non-justiciable, meaning that…
…the courts accept that they have no or very limited jurisdiction to decide whether the act is lawful. The reason for non-justiciability is that the question is a purely political one, and so not suitable for determination by judges.
However, all government powers are legally finite: one of the courts’ key roles is to determine where the boundaries of power lie.
The issue of justiciability was the first question for the Supreme Court in Cherry and Miller (No 2) [2019] UKSC 41. The Court rejected the government’s argument that the prorogation of Parliament was a purely political issue and therefore not justiciable.
How has the Supreme Court become guardians of the Constitution?
- The Justices rule on the validity of laws passed by the devolved legislatures in Scotland, Wales and Northern Ireland.
- They restrict the government to the exercise of powers within the limits that Parliament has set: “this is nothing new. The higher courts have been doing this for centuries […] in this we see ourselves as servants of the sovereign legislature”.
- They “protect the fundamental rights of individuals against encroachment by the State”.
The constitutional role of the judiciary is to…
…interpret the will of Parliament expressed in legislation, interpret and apply case law, and restrain unlawful acts – including those of the Executive.
The role of the Lord Chancellor is to….
…administer the courts and tribunals system.
The Lord Chief Justice has been the head of the judiciary since…
…The CRA 2005
key constitutional principles applicable to the judiciary are the…
…administration of justice in accordance with the law and complete impartiality
The concept of ‘justiciability’ relates to the…
…self-limiting acknowledgment by the judiciary that purely political matters may be beyond its jurisdiction
The UK Supreme Court does not play a formal role as a constitutional court…
…but is arguably developing in this direction.
