The United Kingdom Supreme Court: A Physical Transparency of Independence - Essay Example

? of London Common Law Reasoning and s Essay The United Kingdom Supreme Court: A Physical Transparency of Independence Student Number: ____________ Candidate Number: __________ Introduction The Supreme Court is the highest court in the whole United Kingdom. It is the final arbiters of all types of cases and is the final court of appeal for England, Wales and Northern Ireland. It is also the final arbiter for civil cases in Scotland. Through Constitutional Reform Act 2005 (CRA 2005) the role of Lord Chancellor was modified to give more strength and independence to the Judiciary. The separation of the senior judges from the House of Lords was made to introduce a clear-cut separation of the judiciary from the parliament. The purpose was to maintain impartiality, as the Law Lords were somehow, less understood by the public to be a separate entity from the House of Lords. The attempt to create a separate judiciary is to give more credibility to the judgments and decisions made without political influence. But the separation of judicial functions of the House of Lords with a new Court is rather a change in form than in substance, as the Supreme Court of the United Kingdom lacks the power of judicial review to annul acts of the legislature that are incompatible with the Constitution. The Controversy The issue of judicial independence was discussed in the case of McGonnel v. United Kingdom.1 The case in summary involves a judge of the island of Guernsey who took part over a decision on appeal in the Royal Court over a case that involved an issue that he has previously dealt upon in his prior legislative capacity as Deputy Bailiff. The European Court of Human Rights held that this was a violation of article 6 (1) that requires having his rights determined by an impartial and independent court. The Court held that “with particular respect to his presiding, as Deputy Bailiff, over the States of Deliberation in 1990, the Court considers that any direct involvement in the passage of legislation, or of executive rules, is likely to be sufficient to cast doubt on the judicial impartiality of a person subsequently called on to determine a dispute over whether reasons exist to permit a variation from the wording of the legislation or rules at issue.2" The European Convention on Human Rights and Fundamental Freedoms (ECHR) incorporates the freedom and rights of every individual citizen through the passing of the Human Rights Act of 1998 (HRA 1998) in the United Kingdom. The ECHR provides a requirement for an “independent and impartial tribunal established by law” that will secure the rights and freedom of each individual “without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status”.3 Due to the brewing conflict of the lack of physical independence of the judiciary from the House of Lords, the CRA 2005 was created to replace the appellate committee of the House of Lords with a new Supreme Court. It is to provide a sufficient transparency of the independence of the judiciary from the executive and legislative branch and avoid future controversies involving the ECHR on questioning decisions by the Law Lords on the basis of the lack of impartiality and independence to give a fair trial. The Concept of Separation of Power The concept of judicial independence although not historically linked to Montesquieu doctrine of separation of power is intimately connected. The doctrine introduces the separation from each other of the three branches of government: the executive, legislative and judiciary to avoid abuse of power. “There is no liberty, if the judiciary power be not separated from the legislative and executive..”4 It provides for a system of checks and balances in which the three branches can prevent the abuse of power of one and the other. The Supreme Court is the checking authority to make sure that the executive and the legislative act within its authority without grave abuse of discretion. The power of judicial review emanates from the sovereignty of the Constitution and not from the Supreme Court as a body themselves. In the landmark case of Marbury v. Madison, the U.S. Supreme Court established the concept of judicial review as the power to abolish Acts of Congress that are in conflict with the Constitution and maintain such act as an invalid law5. The Courts are bound to follow the Constitution. But as provided in the Marbury case, it is well to note that Justice Marshall had interpreted the decision based on a written Constitution. The United Kingdom does not possess a single codified Constitution. The British Constitution is composed of statute, court judgments and treaties. Unlike other states like the United States who follows Constitutional sovereignty, the final source of law of the U.K. is based on parliamentary sovereignty.6 Parliamentary sovereignty is in contrast with the concept of judicial review. It connotes legislative supremacy, “the bedrock of the British Constitution is … the Supremacy of the Crown in Parliament.”7 It gives the parliament as a legislative body absolute sovereignty from all other government institutions. The Argument The renovation of the Middlesex Guildhall that houses the highest court in the land by itself costs ?59 Million.8 Independence and Impartiality is not defined by the physical separation made of the Law Lords from the House of Lords. The fact that the Law Lords are member of the Upper House of Parliament does not necessarily define a violation of the separation of powers between the judiciary and the legislature. Law Lords are confined to judicial duties and are not allowed to take part in political debates that may be in their conflict of interest. Judicial Independence Lord Hope said that the rule of law in a modern society is the principle that the judiciary must be, and must be seen to be, independent of the executive.9 An impartial tribunal rules “without fear or favour, affection or ill-will”. 10It is free from scrutiny and control from any undue influence that may come from any individual or from the government, and has the duty to provide fair and reasonable judgments based on peace, equity and justice. The lack of the Supreme Court’s power for judicial review does not undermine the independence of the judiciary. The security of tenure and judicial salaries of judges are protected by the law to avoid any further influence from the executive or legislative Since the Act of Settlement 1701. As provided in the said law, it is only through Her Majesty on an address by both Houses of Parliament on circumstances of “serious misbehaviour” may a judge be removed. 11 Judicial independence does not strictly connote an absolute separation of power, but may be achieved by “mutual independence” as has been long practiced by the mixture of duties involved in the Parliament. Lord Chancellor duties One of the core amendments that CRA 2005 introduced was the removal of Lord Chancellor’s duty in the judiciary. Prior the amendment, the Lord Chancellor duty intertwined among the three branches of government. As for the executive branch he was a political appointee and a senior member of the cabinet. Aside from sitting in the cabinet, as for his legislative duty the Lord Chancellor was also a speaker and sat in the House of Lords. Although a speaker, he did not possess the same powers as the Speaker of the House of Commons. Finally, the Lord Chancellor was also head of the judiciary and has an option to sit in the appellate committee of the House of Lords together with the other Law Lords. Theoretically the system of parliamentary government does not possess separation of powers as demonstrated by the intertwining duties of the Lord Chancellor prior the amendment. But the controversy is rather theoretical than pragmatic since the system of government itself creates this mixture of duties to give the Lord Chancellor a guardianship and balancing duty to represent every branch of government from one and the other. He possess the role of guardian for judicial independence, “that as a cabinet heavyweight” he could put forward in the cabinet any concerns of the judiciary and establish that the rule of law is upheld.12 The CRA 2005 may have removed from the Lord Chancellor the duty to be the head of the judiciary and speaker of the House of Lords.13 But it did not remove from him the duty to “defend the independence of the judiciary… and ensure the provision of resources for the efficient and effective support of the courts.”14 The Lord Chancellor in effect is now also the Secretary of State for Constitutional Affairs with oath and responsibility to run the justice system. The purpose of removal of judges from the legislature and duties to the Lord Chancellor by CRA 2005 is to give a transparent effect to independence. But this does not happen, aside from the Lord Chancellor, The Lord of Appeal in Ordinary, Lord Chief Justice and other judicial holders who possess “peerages” are entitled to sit in the House of Lords upon retirement. Majority believed that a seat in Parliament for the most senior judges was in order to give the House of Lords the benefit of their experience on matters relating to the administration of justice. Hence, the amendment once again defeats its purpose of “transparency and independence”. Conflict in the ECHR In Pabla Ky v Finland, The European Court provided that “although the notion of the separation of powers between the political organs of government and the judiciary has assumed growing importance in the Court’s case-law, neither Article 6 nor any other provision of the Convention requires States to comply with any theoretical constitutional concepts regarding the permissible limits of the powers’ interaction”.15 Independence and impartiality depends on the case presented, as in this example the mere fact that a judge is at the same time a Member of the Parliament does not ipso facto constitute a sufficient violation of Article 6 of the ECHR. As long as the requirement for independence and impartiality as required by the Convention is properly followed, a physical separation of power or theoretical amendment of constitutional concepts is deemed unnecessary. What the law wishes to avoid is “any previous involvement of a legislative, executive or advisory function in relation to the legal issues or subject matter of the dispute”16. The question is of objective impartiality, that an individual cannot exercise dual functions and to examine the same matter in both roles of a grand magistrate and legislator. As the function of the former Law Lords although being a Commission in the House of Lords are a separate entity by themselves without any political influence and are not even allowed to take part in political debates. The non-judicial members of the House of Lords were never involved directly or indirectly in the Law Lords decisions, and vice-versa as the Law Lords themselves, inhibit from taking part in any political discussion involving subjects which may later be adjudicated by them. Conclusion The United Kingdom is traditionally known for the parliamentary entwining of powers, the Lord Chancellor was a Cabinet Minister, a member of the House of Lords and head of the Judiciary. The CRA 2005 have attempted to abolish the system of Law Lords in the House of Lords by replacing it with a separate Supreme Court, it is a change in name and place (The Supreme Court has its own compound in Middlesex Guildhall building in Parliament Square) but not necessarily in substance. The United States Supreme Court is entirely different from the United Kingdom, since parliamentary sovereignty is the rule of law with the lack of any codified and written constitution. Hence, the purpose of judicial review is inapplicable and the change of name of the highest court of the judiciary in unnecessary. The separation of an independent body from the Law Lords in Parliament is a superfluous attempt to provide physical transparency of independence without necessarily altering the substance and effect of such change. Bibliography Books and Articles 1. Gillespie, Alisdar (2007). The English Legal System. Oxford: Oxford University Press. 2. Turpin, Colin; Tomkins, Adam (2007). British government and the constitution: text and materials. Cambridge: Cambridge University Press. 3. Montesquieu, Charles de/ The Spirit of Laws (1748). Edited by Anne M. Cohler, et al.. Cambridge: Cambridge Unversity Press, 1989 4. Casciani, Dominic (October 1, 2009). Five things about the Supreme Court . Retrieved April 25, 2011. BBC Online http://news.bbc.co.uk/2/hi/uk_news/magazine/8283608.stm Laws 1. Constitutional Reform Act of 2005 2. European Convention on Human Rights and Fundamental Freedoms 3. Promissory Oaths Act 1868 4. Acts of Settlement 1701 Table of Cases 1. R (Jackson) v Attorney General [2005] UKHL 56 2. Miller v Dickinson [2002] 3 All ER 1041 PC 3. Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), 4. Pabla Ky v Finland, 22 June 2004 ECHR 2004 5. McGonnel v. United Kingdom [2000] 4 EHRLR 423-425 6. Pabla Ky v Finland, 22 June 2004 ECHR 2004 Read More