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

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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…
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The United Kingdom Supreme Court: A Physical Transparency of Independence
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Download file to see previous pages 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 ...Download file to see next pagesRead More
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