Unit 2: Governing the UK
by Nicola McEwen
Lecturer in Politics at the University of Edinburgh writes for BBC Parliament
The House of Lords has an important judicial role
The structure of the court system in Northern Ireland and Scotland differs from that of England and Wales, but its role and significance in the political system is similar throughout the United Kingdom.
The principles of judicial independence and judicial neutrality are central tenets of the judiciary.
Under the principle of judicial independence, judges should be protected from political interference and political control.
There is some overlap in the UK, however, between the judiciary and the institutions of government.
Senior members of the judiciary sit as Law Lords in the House of Lords, while the Lord Chancellor plays a pivotal role at the heart of government.
Nevertheless, the bulk of the judiciary remains separate from government and Parliament, and their independence is protected by a combination of statute law, common law and convention.
Judicial independence is deemed essential if judges are to have the authority to protect and defend civil liberties.
Such liberties are enshrined in the legal rights we enjoy as citizens of the state, and preserve a range of individual freedoms such as freedom of speech and thought, and freedom of movement and peaceful assembly.
Judicial neutrality holds that judges should be politically neutral. This is closely related to the uncodified nature of the UK constitution and the doctrine of parliamentary sovereignty, discussed earlier.
There is no entrenched constitution in the UK. Parliament is the ultimate source of legal authority, and is not constrained by any higher court (with the exception of the European Court of Justice).
Thus the courts cannot overturn an Act of Parliament for being unconstitutional. Rather, judicial neutrality means that judges should be neutral in their stance to the law, and seek to apply laws passed by Parliament in an impartial, unbiased and technical manner.
From judgement to law
In practice, however, the role of the judiciary goes beyond a strict application of the law. Judicial decisions, over time, have contributed to making the significant body of common law upon which many constitutional principles are based.
Even in the case of Acts of Parliament (statute law), there is often considerable scope for judicial interpretation of what the law entails.
The political weight of the courts has been strengthened by the Human Rights Act (1998) which incorporated the European Convention on Human Rights into UK law.
This has given judges the power to make declarations as to the compatibility of Acts of Parliament with the rights set out in the Human Rights legislation, and suggest appropriate remedies where incompatibilities are found.
In addition, the process of judicial review permits judges to challenge the conduct of governmental authorities on the grounds that their actions may be unlawful, irrational, or that they have followed improper procedure.
For example, in the mid-1990s, judges declared that the secretary of state for social security had acted unlawfully when he withdrew entitlement to income-related benefits for asylum seekers, while the home secretary was found to have acted unlawfully on 14 occasions, several relating to the detention and sentencing of prisoners (Coxall and Robins, 1998; Dearlove and Saunders, 2000).
Although this may suggest that the process of judicial review strengthens judges' capacity to defend our civil liberties against an over-arching central government, such high profile cases are rare.
Most cases of judicial review have found in favour of central government, often to the detriment of local government and trades unions.
Indeed, the extent to which judges administer justice and defend freedom is inevitably contingent upon their understanding of society and upon the value-judgements they make when weighing up what they consider to be in the public interest.
In this respect, the unrepresentative nature of the judiciary - overwhelmingly white, privately-educated, privileged men - must surely raise questions as to whether 'justice' is always done.
© Nicola McEwen 2004
Lecturer in Politics
University of Edinburgh