For at least thirty years prior to 1997 there had been a sustained growth of judicial activism. This meant that by the 1990s the judiciary was playing a role unthinkable 30 years earlier. This was not specifically planned. It simply developed the outcome of various influences, the relative importance of which may be disputed. Among these were the weakening of Parliament as a means of exercising genuine constraint on administrative actions; the growth of administrative law and procedural changes of the 1970s; the influence of Europe, especially through the broad reception to EU law given in the European Communities Act 1972; and the growing attention to human rights. We do therefore now live in a society where the role of judges as lawmakers is much more explicitly recognised than it was 50 years ago. Every society has to strike a balance between attempting to make laws so detailed that judicial discretion is virtually eliminated, and enacting laws so general that crucial interpretation is left to judges. Making laws clearer may be a noble aim. But equally it may be a chimera. The real question we must ask is: What balance should exist between political and judicial decision making? The 1998 Human Rights Act departs from British tradition in several ways, one of which is its more declaratory nature, which of course gives greater scope for judicial discretion.
This growth of judicial discretion has imposed some strains on constitutional arrangements. The way in which judges are appointed has come under greater scrutiny, with some adjustments being made by the Labour government. Ministerial responsibility for the administration of the law and the judicial system seemed unclear. In England and Wales, the role of the Lord Chancellor as both a judge and a senior member of the cabinet attracted attention as an apparent anomaly. The presence and participation of senior judges in the legislative activity of the House of Lords sometimes restricted those who could hear particular cases. Some of these concerns can be related to the general decline in trust that has enveloped so much of public life in recent years. Despite the high standards of probity generally prevailing within the UK, it has been considered necessary to adopt elaborate codes and establish procedures to ensure greater transparency and the avoidance of any appearance of conflicts of interest throughout public life.
It is necessary to see the Prime Minister’s announcement made in June 2003 of the government’s intention to create a new Supreme Court quite separate from the House of Lords and to abolish the office of Lord Chancellor against this general background, though no doubt there were other factors in his mind too. These changes have turned out to be much more complex and controversial than had been anticipated. A major concern is the extent to which the role of the judiciary will be adequately defended and understood at the highest levels within government. However anomalous the role of the Lord Chancellor might have been, in practice as a senior cabinet minister heading the judiciary, the Lord Chancellor was well placed to ensure the role of the judiciary was well understood. Some doubt if the new arrangements will be so effective. There are also concerns regarding maintaining the doctrine of separation of powers whereby the judiciary require to be free from political interference and for this to be evident.
The manner in which decisions were taken is a further matter of concern. A sudden announcement of a change without consultation with the judiciary, nor with the House of Lords (whose Speaker the Lord Chancellor is), and the pretence that the change could be implemented quickly, were all mistaken. The government’s petulance when the House of Lords insisted on sending the Constitutional Reform Bill embodying these changes to a special select committee was also worrying. Constitutional change of this magnitude is not merely a matter for the Prime Minister of the day. Major decisions directly affecting our constitutional arrangements should not be treated as the property of any particular government.
The emphasis on ensuring a ‘transparency of independence’ in relation to the judiciary is also open to misunderstanding. If it is generally accepted that the judiciary has demonstrated a robust independence from government (and this has been more obvious recently than at any time in the last three hundred years), why is it necessary to bring about these changes in order to make the independence transparent? And would they in any case do this? A Secretary of State for Constitutional Affairs, probably an MP who is not a lawyer, very possibly a junior member of the cabinet who hopes that most of his political career lies ahead of him, does not look as well placed to defend the role of the judiciary as a Lord Chancellor placed outside the maelstrom of Commons-driven politics. And none of this does anything to reassure those who fear that the real threat to the UK’s legal independence comes from the increasing possibility of domestic legal decisions being overturned in international courts.
The proposals to establish an independent appointments commission for judges may help to allay suspicions about the appointment process - if it is truly independent. The Labour had already established a monitoring mechanism. But the main concern about judicial appointments has related to gender and ethnic balance. It is far from clear that establishing an independent commission will alter this, though it is worth noting that Scotland has had a Judicial Appointments Board since 2002.
Though the judiciary itself is by no means united on the matter, it is worth reflecting on the fact that at least some senior judges, and many politicians, do see the presence of judges in the House of Lords as contributing to a mutual enrichment of understanding about each other’s roles which it would be unfortunate to undermine.
To do so in the name of the separation of powers principle appears doctrinaire. The British constitution has not in the past been built on any principle of rigid institutional separation. On the contrary, the activities of law-making, law enforcing and taking executive decisions, have always been shared by all three branches of the state – the government, Parliament and the judiciary. Again, we would urge that great care be taken in constitutional reform lest the balance between institutions and functions that has gradually evolved in the past should be lost.
