Discuss by reference to the government's response to the threat posed by terrorism.

“Every legal power must have legal limits, otherwise there is a dictatorship.”

Thus it is vital that the judiciary remains independent so that it can adequately curtail the legal powers of the executive. If the courts take a back seat as the executive wants then we take a dangerous step towards arbitrary power and a possible loss of many of the freedoms we take for granted. The threat posed by the executive encroaching on the independence of the judiciary is that the rule of law is being eroded; this gives rise to further tensions between the executive and the judiciary.

This threat stems from the government’s knee jerk reaction to the London bombings of July 7th. The general feeling emanating from government is that the normal rules no longer apply in such extreme situations and that the courts should stay out of parliament’s way.

“The Prime Minister is trying in his own words to try to tear up the rules of the game”

This is a source of further tension. On one hand parliament is right to ask for more leeway when it comes to such situations as it is privy to inside information from the intelligence services which the judiciary may not have. The judiciary on the other hand claims that in such situations it is even more important that it plays its role without interference. The government cannot be expected to find the balance between the need to protect the state and the need to protect society’s fundamental rights.

“It is almost inevitable that… Parliament or Government will not strike the correct balance between the rights of society and the rights of the individual”

Judges must therefore be independent of politics if they are to effectively strike the balance required. In essence the masters of the judiciary are not parliament or the executive. The judiciary is subordinate to the law and it is the constitutional duty of judges to enforce the law in a way that is compatible with the general principles laid down by the rule of law, which should stem from morals of society buttressed under the Human Rights Act 1998. Thus when parliament enacts legislation that is contrary to the general principles enshrined by legislation such as the Human Rights Act of 1998 and the ECHR it is the courts duty to declare it incompatible and to interpret it in a way that is compatible. Such human rights legislation is now a corner stone for the rule of law and the principles it lays down. If the rule of law is threatened, and thus the judiciary, then who will protect the rights and freedoms of the minority? The principles of the rule of law most notably the third one regarding general principles prevent the Executive from overstepping its mark.

In essence one can say that parliament has a dual mandate; one to the rule of law and to the principles it lays down and secondly to the people in that it must protect the state to the best of its ability. This differs from the judiciary which also has a dual mandate; one is to parliament in that it must enforce all legislation enacted whereas their second is to the law, not the people directly, in that it must make sure that the principles of the law are upheld and remain impartial to politics. Both institutions are therefore bound by the principles of the law, thus conforming to the second principle of the rule of law. The rule of law and its principles act as a safeguard upon which the law can be changed. The executive through parliament cannot change the law unless the principles of the rule of law are upheld. Consequently it is ultimately important that the judiciary remains independent from politics. Unlike the executive the judiciary has no political agenda or ambition that will cloud its judgment. Thus if parliament itself is subordinate to the principles of the law, the judiciary must be independent. If the judiciary is to enforce the principles that are common to each and every person then the executive not the judiciary must take a step back. If judges, whilst trying to protect these principles, are corrupted, ultimately the principles themselves will become corrupted, and it is highly possible that we lose these basic values and the law will become a mere tool of oppression against the minority. If laws do not reflect societies underlying principles the law itself becomes stale and invalid.

“Men do not make laws. They do but discover them. Laws must be justified by something more than the will of the majority. They must rest on the eternal foundation of righteousness”

There is a real danger that if judges stand back and let terror legislation such as detention without trial go ahead unchecked, Britain will turn into a police state with restrictions on freedom of speech, freedom of movement echoing all too clearly the past mistakes which led to the rise of Nazi Germany. This fear is echoed by judges.

“The judiciary has been put there by parliament to ensure that the executive acts lawfully. If we take that away from the judiciary we are really apeing what happed in Nazi Germany”

Independent judges and the rule of law are a vital long stop to protecting the rights of the individual and preserving British democracy. It is entirely possible that if the executive does not take a step back the judiciary may claim that under our flexible constitution the right to court access, contrary to detention without trial, is inbuilt into a modern constitutional democracy. It is possible therefore that any legislation contrary to that principle, such as the new terrorism acts, may be struck down. Even the doctrine of parliamentary supremacy is built upon the common law and thus could be struck down under constitutional theory if another rule is more important such as the right to a fair trial or court access. Thus the independence of the judiciary is vital to the continuance of parliamentary supremacy as we know it.

Further need for judicial independence and an added catalyst for tension, comes from the Governments growing use of wide discretionary powers in relation to terrorism. Whilst there is a need for such powers in a modern day society they cannot be limitless. Without such discretion there would be no grey area and we would live in a total arbitrary and legalistic society, unacceptable in a modern day democracy. There will always be exceptions to any particular rule, in particular with terrorism, but these cannot be endless. It is the courts job to make sure that the executive and thus government do not extend their powers too far. It is vital that the courts put restraints on such wide, sweeping powers to protect our freedoms. Contrary to what government and the media would have us believe, the judiciary are actually braving going against popular opinion to protect our hard fought freedoms.

“But such temporary unpopularity is a price worth paying if it ensures that this country remains a democracy committed to the rule of law, a democracy which is therefore worth defending”

 It is these constraints on the executive that are causing further conflict between the executive and the judiciary.

Prior to the terror threat the courts could merely use the ultra vires rule by checking whether the executive had the power, but with wider powers being laid down by legislation the courts are finding this method increasingly difficult and the procedure of judicial review has become far more important. Under this the courts must decide whether, the executive or public body not only has the power but also whether their action was reasonable, proportional and if there had been adequate debate over the decision. This procedure has heightened the tension building between judiciary and executive. Whilst the judiciary is interpreting these powers narrowly and within the strict confines of legal procedure and the rule of law, to prevent Draconian powers, the executive claim that the judiciary are being overly active and that they should leave them to do their job of protecting the state. The government claims that the judiciary is putting up barriers against the government but this is not the case. The courts agree that decisions upon terror must be left to parliament, but that the Government has to act within the law.

“The Home Secretary is undoubtedly in the best position what national security requires, even if his decision is open to review”

The judiciary is merely placing checks to assist them in this matter. It is these checks and narrow interpretation that lead to tensions.

The courts must however interpret such powers narrowly, if the ideas of natural justice (essentially the principles of the common law and the HRA) are to be upheld. Such justice must be observed by everyone, including all public bodies, directly affecting the rights of the individual by the mere fact that everybody is equal under the law. If judges are pressured into letting discretionary powers, such as detention without trial, go unheeded, they in effect go against all that the law seeks to protect.  This is contrary to everything that democracy stands for and undermines parliament’s right to make decisions, thereby compromising parliament’s supremacy. The protection of our fundamental rights is paramount to any society and judges must be free from pressure to effectively protect them. If judges are pressured into letting things slide we set a dangerous precedent for the future, allowing later governments free reign to trample over our rights.

 In any society this cannot be allowed to happen but it is of utmost importance in the UK. Under a written constitution this would not be a problem as the legislature would have written enforceable legal constraints. Within the United Kingdom however, this is not the case. There is no written constitution to protect our fundamental rights, bar the Human Rights Act but even this does not provide total protection, and thus it lies with the courts to take on this role. If the courts lose their independence and are influenced by politics, their decisions become political instead of being based on justice and so our rights become warped. For society to work this must not be allowed, the people should be judged not upon the whim of a politician seeking short term political popularity but by impartial reasoning based upon the facts of the case and the underlying moral principles of society.

“History affords us many instances of the ruin of states ... the ordaining of laws in favour of one part of the nation to the prejudice and oppression of another, is certainly the most erroneous and mistaken policy”

If the law is to be effective at combating terrorism and maintaining social order it must reflect our beliefs, common to each and everyone of us. If judges are thus pressured into making political decisions we in effect surrender to the goal of terrorism by laying down the very democracy that we intended to protect.

“Where discretionary power is given to the Executive, it should not be arbitrary power,”

Further arguments are made for the need for judicial independence stemming from the need to hold governments to account.

If much of what the judiciary does is hold the Government to account then surely the decision making process is made more effective? If the Government knows that its legislation will be scrutinized by the courts then theoretically there will be more debate over it in parliament. If the faith in the judiciary is lost not only by the politicians but by the public itself, due to a smear campaign by the media jumping on the band wagon, then its credibility to judge is compromised. This has a knock on effect in that if the judgments are not respected then there is no need for effective parliamentary debate and we are left with legislation that is wholly inappropriate. Such legislation may be contested in the courts but if faith has been lost will any attention be paid to the courts rulings? With parliament’s role in scrutinizing legislation limited under past Labour and Conservative governments who will be left to hold the government to account, if the courts are no longer effective? This is a bleak view but it effectively shows that an independent judiciary, whilst vital to preventing discretionary powers trampling on our rights, also enhances democracy itself by increasing the accountability of government. If judges are undermined by aggressive home secretaries, then the checks placed on the Government are less effective and once again we would take a further step forward to arbitrary power, totally abhorrent and unacceptable in a modern democracy. Terrorism achieves its goal and our freedom is lost. If ministers wish for parliamentary supremacy to remain they must back off and leave the judiciary to do their job as it is vital for their own survival.

“Democracy implies a commitment to standards of civilized behavior that extend beyond the recognition of formal political rights.”

This conflict threatens the heart of our legal system and furthers the terrorist’s goals. With ministers eroding age old constitutional conventions of not attacking judges, they are in effect signing their own death warrant. It is the constitutional role of the judiciary to protect the ideals of society, to uphold the rule of law, to hold the government to account and to protect the rights of the minority. All of these checks must be kept in place if the credibility of government is to be maintained. The judiciary must then remain independent to protect parliament itself. For if the judiciary cannot do its job then the executive has no leash and we are left with an elected dictatorship, unacceptable by any standard. It is therefore the David Blunketts and Michael Howards of this land are the ones that are out of touch, not the judiciary. If parliament and consequently the executive’s credibility is undermined then parliamentary supremacy ceases to be valid and we have a constitutional crisis on our hands. As Britain then plunges into such a crisis we therefore open our arms to terrorist activities. To answer the original question an independent judiciary is therefore not only vital but a pre-requisite for parliamentary supremacy to exist.

“Judicial independence is basic to the British Constitution”

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