Judicial independence and judicial accountability are critical issues for the proper functioning of the rule of law. Courts are an important element of governance, and the relationships between the courts and other agencies of governing, as well as between courts and citizens, are essential to constitutionalism and the rule of law. What courts should a society have? How are judges appointed, disciplined, and dismissed? By whom? How are courts funded? Where should courts be housed? How are executive, legislative, and judicial powers distributed and calibrated? These are fundamental questions that provide us with a baseline for examining and analyzing political structures in any given polity. Such examinations should include views from politicians, parliamentarians, and judges themselves, as well as academics and lay persons. It is worth our time to think about these issues and what they mean for research and writing on constitutional orders.
Britain, historically, has a distinct conception of the principle of the “separation of powers” and a unique set of political and legal arrangements organized around the principle. In brief, the British approach proceeds on the premise that a strict separation of powers is not necessarily required for constitutional government. This premise has come under significant pressures in recent years.
For example, the office of the Lord Chancellor has historically exercised executive power (as a member of Government), legislative power (as Speaker of the House of Lords), and judicial power (in the House of Lords as the Highest Court of Appeal and on the Privy Council). This has recently changed, however. Let me briefly discuss some specific modifications.
Prior to 2005, judicial appointments to the superior courts of the British judiciary were not an independent process. They were made on the recommendation of the Lord Chancellor, in the capacity of Government Minister. This process was subject to two main criticisms. First, because the appointment process was non-transparent, it was difficult to know whether undue influence was indeed present, and whether judges were actually independent. Second, appointments to the judiciary were made in consultation with the judiciary, which gave the appearance that judges were prone to “appoint their own.” Since the judiciary is largely white, male, and upper class, this presented a problem of bias.
The Constitutional Reform Act 2005 removed the Lord Chancellor almost entirely from the appointments process, replaced by the Judicial Appointments Commission in England and Wales, and by similar bodies in Scotland, and in Northern Ireland. The Commission makes appointment recommendations and has a statutory duty to “encourage diversity in the range of persons available for selection for appointments” (§64).
Originally, in 2003, the Government proposed abolition of the office, a suggestion which was rigorously opposed, and the Government was forced to retreat from its position. Nevertheless, the basis for the critique of the office, that it violates principles of separation and good practices of judicial independence and accountability, was sound and reforms were enacted in the Constitutional Reform Act (see especially §§17, 18). The role of the Lord Chancellor has been significantly redefined, and although removal of the appointments prerogative (and related reforms) and the imposition of the statutory duty were designed to alleviate the two main criticisms, concerns about judicial independence and accountability continue to persist, including the Lord Chancellor’s continued (but substantially limited) veto power over appointments, as well as concerns about decisions regarding funding of the courts.
These changes to the office of the Lord Chancellor have been in parallel with another recent seismic change in British constitutional structure, namely the removal of the Law Lords from Parliament, and the creation of the Supreme Court, which entered into operation in 2009. As with the office of the Lord Chancellor, prior to 2005 there were a number of concerns regarding the “shadow” of Parliament over the work of the House of Lords as a judicial body. I will take up this issue in my next entry.
Let me leave off here with a question provoked by reforms to the role of the Lord Chancellor. How do we, if at all, translate these macrosocial issues into the concerns of this blog, that is, of popular forces and “acting constitutionally”? How do popular forces enter into processes of structural constitutional change and institutional transformation at this scale? Does the “constituent power” as Antonio Negri understands it, have a role to play creating new courts and reforming historically important and long-standing political offices? This is a question separate from the issue of citizens’ (and others’) use of the courts to pursue remedies against governmental actions. It would seem from one perspective that in a constitutional, democratic, majoritarian political-legal system, the only ways for constituents to exercise the power of institutional change are (1) through the electoral-representative process; or (2) through revolutionary activity. Are there other possibilities?
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