Get to grips with the UK’s political system in our six minute politics series! For A Level Politics students, each of these blog posts is a six-minute summary of some of the main topics you will need for your exams. For university-level scholars or independent researchers, we’ve included clickable links to useful literature, primary sources and canonical scholarship you’ll need to know.
In this post, discover rights and the judiciary in the UK!
Judge William Brett condemned the delay and expense of trials
In our post about the UK Constitution, we saw that one of A. V. Dicey’s ‘two pillars of the English constitution’ is the Rule of Law. This means that (i) no-one is above the law and everyone is subject to the same laws (ii) no-one can be punished without trial and (iii) the principles of the constitution result from the decisions of judges.
These work together to give judges their constitutional position. Common law (derived from judges) is a source of the constitution, but an act of Parliament can override any legal precedent.
The Lord Chancellor’s role changed dramatically following the Constitutional Reform Act (2005). This transferred the Lord Chancellor’s judicial functions to the President of the Courts of England and Wales – a new title given to the Lord or Lady Chief Justice. The Lord Chief Justice is now responsible for the training, guidance and deployment of judges and represents the views of the judiciary of England and Wales to Parliament and ministers
For the first time in almost 900 years, judicial independence became enshrined in law, whereas previously, the Law Lords, part of the House of Lords, had been the UK’s highest Court of appeal. An independent Supreme Court was created along with an independent Judicial Appointments Commission and Ombudsman.
Judicial Independence, Neutrality and Impartiality
Judicial independence and neutrality is maintained by security of tenure, meaning that it is difficult to remove the senior judiciary (they would need to be impeached by Parliament). There are also guaranteed salaries, as judges’ salaries are drawn from the Consolidation Fund, so should be free from manipulation. Contempt of Court means that it is an offence to speak out publicly during legal proceedings. In addition, the training and experience of judges should make them unlikely to compromise their professional principles.
Judicial impartiality is maintained by anonymity, as judges are expected to avoid the public eye. Judges are expected to explain how their decisions are rooted in law and may not campaign for political parties or make their views known. On the other hand, the creation of the Supreme Court and its relocation to Middlesex Guildhall brought judges into the public eye. Having said this, the creation of the Judicial Appointments Commission and the downgrading of the role of the Lord Chancellor has made the Courts more independent.
Judge William Erle was known for his impartiality
Among the threats to judicial impartiality are the fact that there is a narrow recruiting pool, with the majority of judges being ‘male, pale and stale.’ In addition, the judiciary has become politicised, partly because of the Human Rights Act (1998), which makes judges consider the ‘merit’ of a piece of law rather than its application. The UK’s history with the EU has also added to this politicisation.
Judicial Review
Unlike in the US, judges in the UK cannot strike down Acts of Parliament as unconstitutional, but they can use judicial review to rule on the legality of ministerial decisions by the courts.
A good example of this is the Jamie Bulger Case, in which Home Secretary Michael Howard fixed a fifteen year tariff on two boys who had murdered a two-year-old. The Law Lords of the House of Lords upheld his right to do so, although in 1999, the European Court of Human Rights held that this violated Articles 5 and 6 of the European Convention on Human Rights.
Sir John Popham presided over the trials of Sir Walter Raleigh and the conspirators of the Gunpowder Plot
Other good examples are R (on the application of Miller) v Secretary of State for Exiting the European Union (2017) in which the Supreme Court ruled that the government must obtain parliament’s authorisation before it could trigger article 50 to leave the EU. In Miller v Prime Minister (2019), it was ruled that Boris Johnson’s decision to prorogue Parliament (bring the current session to an end) violated constitutional limits.
Rights
The constitution should protect both individual rights (e.g. freedom of speech, freedom of religion) and collective rights (e.g. trade union rights, disability rights).
Don’t be fooled by those who say that the UK has no Bill of Rights. We do have the Bill of Rights (1689), which established the principles of frequent parliaments, free elections and freedom of speech within Parliament, freedom from government interference, the right of petition and just treatment of people by courts.
The UK signed the European Convention on Human Rights (ECHR) in 1951. This protects rights such as the Right to Life, Freedom from Torture, Freedom from Slavery and Forced Labour, the Right to Liberty, the Right to a Fair Trial, the Right to Privacy, Freedom of Conscience and Religion, Freedom of Expression, Freedom of Assembly and Association, the Right to Marry and Establish a Family, and Freedom from Discrimination.
Until 1998, British citizens seeking protection under the Convention had to apply for a ruling from the European Court of Human Rights (ECtHR) at Strasbourg as the last avenue of appeal. The Human Rights Act (HRA) (1998) incorporated the European Convention on Human Rights into British law and enhanced the idea of judges as custodians of civil liberties.
A good example of the role of judges here is when the Anti-Terrorism, Crime and Security Act (2001) suspended Article 5 of the ECHR due to national emergency. This was found, among other things, to be in breach of Article 14, Freedom from Discrimination, which had not been suspended (click the link to read about the judges’ reaction to the act). The Law Lords ruled against this and the Prevention of Terrorism Act (2005) was necessary. New legislation has to be tested against the HRA before it receives Royal Assent.
The European Court of Human Rights is not to be confused with the European Union Court, the European Court of Justice (ECJ). Britain would still be subject to the ECHR even if the HRA was replaced and even now the UK has withdrawn from the EU.
When the UK was a member of the EU, a controversial point was that it gave UK courts the right to strike down legislation, which undermined parliamentary sovereignty. This is because laws that conflicted with EU law were invalid once the UK joined the EEC in 1973.
Henry Marten was a judge in the trial of King Charles I and signer of his death warrant
The most notable example of this came when the UK’s Merchant Shipping Act (1988) banned foreign companies from registering their vessels as British for fishing. The European Court of Justice (ECJ) ruled that this was contrary to European law. This was confirmed by the House of Lords in the Factortame case (1990). The Factortame case could be seen as part of the trend towards greater judicial activism in the UK.
One interesting way to think about this is that no other EU country was affected in this way: the UK was the only EU country with an uncodified constitution - so parliamentary sovereignty was not a fundamental feature of other states’ constitutions in the first place.
In our next post, explore the workings of democracy in the UK!
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