David Neuberger: the power of judges in the UK

There are three branches of government, the legislature (parliament), the executive (ministers, the civil service, local government, etc), and the judiciary. Although there is overlap between the first two (because ministers are also members of the legislature), the rule of law requires judges to be truly independent of the other two branches, and it also requires the judiciary not to get involved in investigating what goes on in parliament.

The United Kingdom is unusual in having no overriding constitution, ie a set of rules which are binding on all institutions including parliament, which can only be changed by a parliamentary “super-majority” or referendum. So, for instance, until 2005, independence of the judiciary was simply a convention. Because we have no such constitution, the UK supreme court, unlike, for instance, the US supreme court, cannot refuse to apply, let alone to strike down, a statute enacted by the parliament on constitutional grounds, however objectionable the statute may be. It has been suggested that this would not apply in the case of a statute which was fundamentally inconsistent with the rule of law: I hope that that suggestion never has to be tested.

Accordingly, when they come to consider a statute enacted by parliament, the judges’ duty is simply to interpret the statute. However, over the years, judges have developed rules of interpretation which are quasi-constitutional in nature—eg that some statutes have a special constitutional status, and that “fundamental rights cannot be overridden by general or ambiguous words.”

As judge-made principles, these rules are part of the common law, which applies to any topic which is not covered by a statute. If the common law has become outdated or has taken a wrong turn, judges develop or correct it. The notion that judges should not interpret statutes in accordance with judge-made principles or that the common law should remain ossified is inconsistent with the UK’s flexible and pragmatic approach to laws, an approach which is particularly appropriate in a technologically and socially fast-moving world.

It is true that judges are unelected and thus lack democratic legitimacy. However, it would be inimical to the rule of law for power to be concentrated in the hands of one body, however democratic its credentials, and the judiciary, like the media, represent an important counterweight to parliament. In any event, the legislature can always have the last word: if members of parliament do not like what the judges have decided, they can reverse the decision by legislation. Anyway, the very fact that judges are not worried about re-election or political and media pressures makes it easier for them to make necessary, but difficult or unpopular, decisions.

In the UK where, as previously mentioned, ministers are members of the legislature as well as of the executive, they therefore can often exert considerable influence over parliament. This makes the judges’ role in upholding the rule of law all the more important.

As to the relationship between the judiciary and the executive, one of the most important functions of judges is in the field of public law, where judges protect citizens from unreasonable or unlawful decisions of the executive. (This power extends to so-called secondary legislation, laws made by the executive with the authority, and often the approval, of parliament.) The judges’ public law role has grown enormously over the past 50 years, partly because of changes in societal attitudes, partly because of the very substantial increase in the executive’s powers, and partly because of the passing of the Human Rights Act 1998, which gives individuals many new and many improved rights. It is fundamental to the rule of law that people not only have rights against each other but also have rights against the state, and it is also fundamental that those rights are enforceable through people having access to an independent judiciary.

And it is not, of course, only when resolving public law issues that judges uphold the rule of law. They do so every day when they are trying cases involving criminal, personal, family or commercial law, dispensing justice, almost always in public, maintaining law and order, and protecting the weak and vulnerable.

Despite the absence of an overriding constitution in the UK, judges sometimes resolve important constitutional issues. They did so recently, when deciding that ministers could not give notice that the UK was going to leave the European Union without getting formal parliamentary sanction. The judges also have a constitutional role when deciding on the extent of the devolution of powers from Westminster to Edinburgh, Cardiff and Belfast.

Maintaining an appropriate balance between judicial intervention and judicial restraint is key to the judges’ role. They must protect citizens from unlawful actions, including those of a powerful, but sometimes over-enthusiastic or mistaken, executive. However, in performing this vital function, judges must not over-reach themselves.

The Power of Judges by David Neuberger and Peter Riddell will be published by Haus on 19^th November.