Furthermore, we could also consider the success of judicial inquires as proof that the judiciary is a powerful check on the executive. These are called by the government in order to investigate major issues. It can be seen as good for democracy, because it means that the courts and not politicians are investigating the government. An example of a successful inquiry was the Macpherson Inquiry, 1999, which looked into the killing of black teenager Stephen Lawrence by a group of young white men. It was conducted in order to examine the handling of the case by the police and the implications for race relations in the UK. The inquiry abolished the rule against double jeopardy (being charged twice for the same crime). Jack Straw, who was Home Secretary at the time, rejected this proposal but the Law commission affirmed the decision and double jeopardy now exists in the UK. This is a key example of how the courts can overrule the wishes of the executive.
Furthermore, there are several conventions and rules that mean the executive is a powerful check on the executive. Judges have Security of Tenure, meaning they cannot be sacked . They remain in office until the age of 70. This removes the possibility of losing jobs due to political judgements. Furthermore, judges are paid well from a consolidated fund. It was hoped this would prevent them being swayed by corruption and promises of position. Conventions prevent politicians from criticising the rulings of the judiciary. This is called subjudice.
Judges themselves should be politically neutral. In order to maintain neutrality judges are forbidden from making political comments, belonging to political organisations or pressure groups and political contributions are confined to political matters. Judges also face scrutiny from within their own profession. The legal profession is what is called self-regulating; their actions are scrutinised by the Law society. Lawyers are also not trained by the state as elsewhere in Europe. Judges must explain all their rulings in great detail. The Kilmuir Rules encourages judges to not be public figures.
Moreover, the judicial appointments commission, which was established in 2006 after the 2005 Constitutional Reform Act, deals independently with the prospective appointments for the judiciary. They had previously been appointed by the Prime Minister, which was not very democratic as he could appoint judges sympathetic to his views. This has resulted in a number of very independent-minded judges emerging at senior levels. Many of these judges feel they do have a politically important role. Several of these judges are also willing to use the media to express their views.
Furthermore, the EU has an impact on the ability of the judiciary to be a powerful check on the executive. The Social Chapter of the 1992 Maastricht Treaty transferred a lot control over employment and other social rights over to the EU. In these areas the UK judiciary is required to enforce such laws and interpret their meaning. Some cases, relating to rights at work, pensions or discrimination issues have great importance.
On the other hand, the alternative view is that the ability of the judiciary to check the executive remains limited in spite of the reforms. The judiciary is an occasional nuisance rather than a constant check, and judicial reviews have limited impact and may be restricted by executive action in the future. The Conservative party for example has threatened to overturn the Human Rights Act 1998. Laws are effectively made by politicians and only interpreted by the judiciary.
The demographic composition of the senior judges could call into question their neutrality. The current Justices include Lord Neuberger (President of the Court), Lord Phillips, Baroness Hale and Lord Kerr (who attended Queen’s University, Belfast). 11 out of 12 are male. Baroness Hale is the only woman. In 2012 their average age was 66 and 11 of the 12 Supreme Court justices went to Oxford or Cambridge University. This would suggest that they are much more likely to side with Cameron’s Conservative government. Up until the 1990s there was a good deal of evidence that suggested the background of senior judges does affect their outlook. During the 1980s particularly there had been a succession of cases concerning trade union rights and activities, conflicts between central and local government, and issues about the powers of the police where judges ruled consistently in favour of the centralised state.
The usefulness of judicial inquiry as a means to provide a powerful check on the executive could be called into question. Inquiries are set up by the government. Blair has consistently refused to allow an independent judicial inquiry to look into the circumstances surrounding the UK’s involvement in the Iraq war. The government perhaps only allows inquiries on matters it is happy with – this limits the impact of independence of the judiciary. The government only receives recommendations from inquiries and can reject them. Implementation rests with the government. Furthermore, reports that come from inquiries get debated in the House of Commons. It is up the government to decide parliamentary time and they may limit debate to suit themselves.
Judicial review could also be criticised. Judges cannot overturn acts of parliament (due to principle of Parliamentary Sovereignty). The people must pay for it out of their own pocket with no guarantee of victory. Legal Disputes may be prohibitively costly. Only the wealthy can afford top lawyers and access to legal aid is not always easy and may exclude those from mid Income groups. The minister can appeal the decision, such as Theresa May and the deportation of Abu Qutada in 2013. Some judicial review decisions mean that important public sector projects have been set back, notably a third runway at Heathrow. In 2014 House of Commons debated government plans to reform it, contained in the Criminal Justice and Courts Bill, which Labour's Shadow Lord Chancellor and Justice Secretary Sadiq Khan described as 'an unconstitutional attack on the rights of the British people'.
Another reason why reform of the judiciary has not made it a powerful check on the executive is that Cameron has the power to veto decisions made by the Judicial Appointments Commission. However, this is a theoretical problem that had not yet occurred. The government retains control of the legal system through the Justice Ministry. This does not constitute direct control, but suggests a good deal of interference.
Moreover, subjudice has been breached in the past. In recent years there has been an increasing tendency for politicians to enter into open political dialogue with judges over such issues as sentencing policy and the protection of rights. This may result in indirect pressure being placed on the judiciary. In 2007 the Home Secretary John Reid openly criticised the decision not to deport the murderer of head mast Philip Lawrence. Previous Home Secretaries have criticised the decisions releasing 9 Afghan hijackers in 2003 and for releasing terrorist suspects from Belmarsh prison in 2005.
To conclude, the judiciary remains central to British politics and is vital if democracy is to be upheld. It is a powerful check on the executive for the reasons outlined in this essay, such as… It is a channel where the people are able to question the government and the reforms have made it even more powerful as a check on the executive.
by
erinruth99gmailcom (student)
