The United Kingdom self-identifies as a parliamentary democracy with a constitutional monarch. As a democratic country, the UK has a separation of powers into executive, legislative, and judiciary branches. The judiciary branch is independent of the other two branches and includes magistrates’ courts, county courts, high courts, the Crown Courts, the Court of Appeal, and, as of lately, the Supreme Court. The separation of power is not supported by any concrete doctrine but rather there are overlaps between multiples. It is said that the country has an unwritten constitution because there exists no consolidated document1.
Constitutional law is made up of common law, statute law, and convention. The most significant documents serving as the basis for the British Constitution are the 1215 Magna Carta, the 1689 Bill of Rights, and the Reform Act of 1832. Together, they protect the rights of the citizens against the crown, give more power to parliament, and set the structure of parliamentary representation.
In 2005, the Constitutional Reform Act assured that for the first time, judiciary independence would be officially enshrined in law2. Government ministers’ duties were expanded to include upholding the independence of the judiciary branch, preventing them from accessing judges and influencing their rulings. The most dramatic changes were related to the post of Lord Chancellor. In an attempt to prevent the fusion of powers, the United Kingdom broke centuries-old traditions of appointing a Lord Chancellor by the Monarch to lead the Ministry of Justice and the Secretary of State for Justice. Lord’s judicial functions were handed over to the Lord Chief Justice who then received the new title – the President of the Courts of England and Wales.
As per the 2005 Constitutional Reform Act, the Lord Chief Justice now represented the views of the judiciary of England and Wales to the legislative branch. Aside from that, the Lord Chancellor could no longer be a Speaker of the House of Lords and was substituted by the Lord Speaker.
Another serious milestone toward official separation of power is dated 2009 when the United Kingdom established an independent Supreme Court that was autonomous from the House of Lords. The UK Supreme Court now has an independent appointments system, its own building, staff, and budget. The court’s assumption of the devolution jurisdiction by the Judicial Committee of the Privy Council essentially took the judicial function from Parliament that is part of the legislative branch3. Moreover, other branches no longer had any impact on the selection of candidates to recommend for judicial appointment to the Secretary of State for Justice. Their selection is the responsibility of the Judicial Appointments Commission that evaluates candidates solely on the base of merit and ensures that the appointments system remains transparent.
Though the United Kingdom is moving toward greater separation of powers, the existing system is not immune to criticism. For instance, when comparing the US Supreme Court to the UK Supreme Court, Clapham notes that the latter is a product and a continuation of a written constitution4. The US Supreme Court is empowered to rule over Acts of Congress if they violate the Constitution. Conversely, the UK is characterized by parliamentary supremacy that prevents the court from creating obstacles to passing parliamentary legislation. Such an arrangement implies that the court may be supreme within the judicial branch but may not have the same weight among the institutions belonging to the other two branches.
References
Clapham, N., ‘UK Supreme Court: Ten Years of Treading the Knife Edge Between Politics and Law’, The Conversation, 2019. Web.
Courts and Tribunals Judiciary, ‘Constitutional Reform’, Courts and Tribunals Judiciary, 2020. Web.
Kulesza, C., ‘Systems of Selection and Appointment of Judges and the Issue of Judicial Independence: American, English and German Experiences’, Białostockie Studia Prawnicze, vol. 20, 2016, pp. 121-132.
Leyland, P., The Constitution of the United Kingdom: A Contextual Analysis, Bloomsbury Publishing, London, 2017.
Footnotes
- P. Leyland, The Constitution of the United Kingdom: A Contextual Analysis, Bloomsbury Publishing, London, 2017, p. 100.
- Courts and Tribunals Judiciary, ‘Constitutional Reform’, Courts and Tribunals Judiciary, 2020. Web.
- C. Kulesza, ‘Systems of Selection and Appointment of Judges and the Issue of Judicial Independence: American, English and German Experiences’, Białostockie Studia Prawnicze, vol. 20, 2016, pp. 125.
- N. Clapham, ‘UK Supreme Court: Ten Years of Treading the Knife Edge Between Politics and Law’, The Conversation, 2019. Web.