• Join over 1.2 million students every month
  • Accelerate your learning by 29%
  • Unlimited access from just £6.99 per month

Is the British judiciary's integrity at stake in a constitutional monarchy which does not comply with Montesquieu's base definition of democracy? Transitioning without a written constitution

Extracts from this document...

Introduction

Edit Sipos Paper 2 "By the latter part of the 20th century the independence of the judges had come under increasing threat from interference by the executive. Recent reforms have, however, served to redress this position and ensure that a proper division of personnel and functions between these two arms of the state is restored. Discuss this statement in the context of the Separation/ Balance of Powers in the UK constitution." French political thinker Montesquieu argued during the Enlightenment that in a democratic state the three branches of government; the legislative, the executive, and the judiciary should not overlap in personnel or function. Is the British judiciary's integrity at stake in a constitutional monarchy which does not comply with Montesquieu's base definition of democracy? Transitioning without a written constitution or clear separation of powers resulted in questionable balance of power amongst the arms of government, and to some extent hampered judicial independence. The United Kingdom's historic and homeostatic governance needed to be severely tweaked to conform to the contemporary world. The UK's judicial system faced challenges similar to those European nations which have moved from despotic to democratic governance; the processes' abridged version most recently featured by members of the Soviet block in the early 1990's. The courts' crucial function of upholding individuals' rights, keeping the executive in line, and defining the meaning of laws relies on a decision making process and judicial review wholly independent from outside forces and considerations. ...read more.

Middle

The appointment process has often been criticized for being "haphazard" and an "old-boy network" (Turpin 50) with judges from similar, middle-class backgrounds and an Ox-bridge education (Hartley 169). Unsurprisingly, judges historically tend to be deeply conservative, favouring the property owner, employer, and the status quo. So how much of protecting the citizens rights from an all-mighty government factors in? Not much. In reality, judicial review, or the courts' power to intervene where public authority acts unlawfully, is most often used to bind local government rather than impede the central state (Sueur 467). Although the limitations on the ethos of judicial independence may seem grim, there are in fact increasing legalities vouchsafing judges' unimpeded discharge of their duties. Although the principle of separation of power presupposes judicial neutrality, unabridged independence of the judiciary can only be expected from an independently appointed body of individuals secure in their tenure and livelihood. The appointment process has been significantly re-vamped since 1997, with the High Court being gathered from the entire pool of those eligible for the profession instead of an invitation-only basis. A Commission of Judicial Appointment has also been created for oversight of the system and recommendation. As judicial appointments are meant to be apolitical, judges are expected to abstain from political involvement and are not permitted membership of the House of Commons. ...read more.

Conclusion

Although it is important to secure the independence of judicial administration and review, it is equally important to maintain the precious balance within the government, lest the watchdog becomes the master. Judges are fallible and human, and they will inherently bring with them values instilled in them by society, education, and their family that will subtly influence their decision making. These are inevitable and even desirable aspects of decision making. However, true to the doctrine of judicial independence, they should be free of force, fear, and political considerations. The executive's gain of power seemed to have been curbed in recent years, with increased focus instead on the judiciary. Although many domestic and international laws and conventions aim to further judicial independence, this ideal is best feasible through a culture of integrity of the judiciary, the politicians, and the communities whom the judges serve. Perhaps a significant reason for the feasibility of unwritten laws and conventions United Kingdom in maintain law and order is the "culture of gentlemen". Reference Hartley, T., Griffith, J. "Government and Law." Second ed. Fakenham Press. London. 1981. Kirby, M. "Courts and Politics: Judicial Independence." Yale Law School. 2000. Retrieved from the World Wide Web: http://www.hcourt.gov.au/ Sueur, A., Sunkin, M. "Public Law." Longman. London. 1997. Turpin, C. "British Government and the Constitution Text, Cases and Materials." Fifth ed. Cambridge University Press. Cambridge. 2005. "Judicial Independence, Open Justice and Advance Sentence Indication." Crown Prosecution Service Retrieved from the World Web at: http://www.cps.gov.uk/ ...read more.

The above preview is unformatted text

This student written piece of work is one of many that can be found in our GCSE Politics section.

Found what you're looking for?

  • Start learning 29% faster today
  • 150,000+ documents available
  • Just £6.99 a month

Not the one? Search for your essay title...
  • Join over 1.2 million students every month
  • Accelerate your learning by 29%
  • Unlimited access from just £6.99 per month

See related essaysSee related essays

Related GCSE Politics essays

  1. What is a written constitution?

    Thus parliament may have in practice limited its own sovereignty, the Factortame case of 1990 illustrates this. The case involving the denial of UK fishing rights claims illustrated the erosion of the UK's unfettered sovereignty. The incorporation of the European Convention on Human Rights into UK law by the Human

  2. British Government and the Constitution "Government without a Constitution is power without a right."

    harmony and the Judiciary independent, to enforce the laws of parliament, custom and tradition. The introduction of the Whigs civil list deliberately kept the monarch short of money, and being accountable for the funding of the armed forces and the government by submitting estimates to parliament, this consequently meant that parliament controlled Royal policy.

  1. Too much democracy is a recipe for anarchy. Discuss.

    e have seen that the legislative power belong to the people, and can belong to that body only". Locke holds democracy at a high regard, as any justifiable government must be of the people. I personally believe that giving political equality to the citizens would be good, as I believe

  2. The advantages of the Uk having a constitutional monarchy are greater than the disadvantages. ...

    Thirdly, some critics claimed that the royal family is expensive. According to the report of civil list, the Queen's official expensive is '�7.9m a year until 2011'.iii What's worse, maybe we can still clearly remember that in 1993, Windsor Castle caught a fire and it cost approximately 37 million pounds to rebuild it.

  1. 'THE SEPERATION OF POWERS: FACT OR FICTION UNDER THE BRITISH CONSTITUTION?'

    Our modern concept of separation of powers is, in fact, mostly drawn from the writings of 18th century French political theorist, Charles de Montesquieu. In reality, the separation of powers he describes has never been implemented fully in England or, most likely, anywhere else.

  2. The constitutional change in the House of Lords

    an excepted peer, to vote in election to the House of Commons and for connected purpose. Consequently, a transitional House of Lords was existed until further reform is implemented. According to the House of Lords Act 1999, ninety-two hereditary peers to be remained in the interim Chamber who excepted from section 1.

  1. Malta at the turn of the 19th Century.

    However these eras of financial crisis where overcome during the Crimean war, when Malta under the Governor Sir William Reid was turned to a real advance station of the battlefront and become a strategic military and naval arsenal for the British fleet.

  2. Notes on Citizenship and Democracy.

    state of countries in which there was no democracy and freedom of opinion and of expression had to censor the printing product. 1. Censorship ? writing had to be approved by the authorities before they get printed. Writings which were not approved would have been burned.

  • Over 160,000 pieces
    of student written work
  • Annotated by
    experienced teachers
  • Ideas and feedback to
    improve your own work