What role do judges play in the modern United Kingdom constitution? To what extent will the proposals for a new judicial appointments system for England and Wales and a new Supreme Court for the UK enhance the legitimacy of judicial power? The primary role of the judges within our modern United Kingdom constitution is to uphold its values and be the protector and keeper of the constitution. However there is no written or "codified" constitution, this by no means purports that there is no constitution in our country; simply there isn't any where for us to look to define this role exactly. It is true to say though that judges must ensure that the cardinal constitutional principles are upheld and adhered to be the government of the day.
It can be said that the role that the judges play, can be looked at as a "pivotal part in the British constitution"1. Another important role of the judges within our modern United Kingdom constitution is to ascertain challenged questions of fact and law in accordance with the law made by parliament interpreted by the courts. For centuries judges felt that that merely applied the law made by parliament, they felt that their job solely was to "interpret the law, and not to make, or give law"2 This has changed somewhat in recent years with judges making the law.
It has been felt for many decades now that there has needed to be an overhaul of constitutional change within the United Kingdom, with particular regard to the judiciary of England and Wales. Problems seem to arise from the lack of transparency throughout the entire system, in appointments, accountability, management, composition (having not one top court but two) and the role of the Lord Chancellor. First came the radical criticism of the judges of the United Kingdom by J. A. G. Griffith,3 where he disparages upon the mindset of the judiciary, he believes they seek to preserve the, "moral and social behaviour to which it [the judiciary] has become accustomed"4.
The present Labour government's response to comments such as these has been, to draw up proposals for a new judicial appointments system and a new Supreme Court for England and Wales. The Peach report5 attacks the current appointments system, and a Senior Law Lord6, publicly states his views on the need for changes in the top courts, he says the Supreme Court must "command the confidence of the country in the changed world in which we live".Historically there has been little to no constitutional reform within this country, making our present system and institutions look outdated and flawed. One example of this is the "Increased activities of government" which has "meant increased powers of government" and with these there has been "correspondingly less effective controls on these hidden but enormous powers"7
The question is asking us to establish whether due to these new proposed changes the legitimacy of judicial power will be increased or not. Before we can fully assess the reforms in judicial power that have been recommended I feel it is essential to address the question of legitimacy. This is a problematic conundrum for the answer cannot be easily found so I have employed the knowledge of different legal writers in this search. Barnett8 feels legitimacy comes from a respect for the institutions of our constitution, "A law making system is legitimate if there is a prima facie duty to obey the laws it makes", he feels we need legitimacy otherwise we do not know to "obey", "improve" or "ignore" the laws that are set down and upheld by courts.
One thing he is very clear on is that legitimacy is not necessarily given by the majority consent of the people, it can be the case but it is more that if the "procedures" are "adequate" and that the "laws imposed….are just". The interpretation I favour the most is offered from the selection of essays entitled "Law, Legitimacy and the Constitution"9 it is expressed here that "legitimacy is more of a belief or opinion" the idea being put across here is,
"If a people holds the belief that existing institutions are "appropriate" or "morally proper" then those institutions are legitimate (Schaar, p.10810) Popular opinion determines legitimacy and legitimacy is a "function of the system's ability to persuade members [of a society] of it's own appropriateness" (Schaar, p.109)" So this is more the idea of the masses belief, or popular opinion gives an institution, in this sense the judiciary, its legitimacy.
The first stage of reform is that of the appointment process. In understanding how the appointments system in England and Wales works today we must address the role of the Lord Chancellor. Due to separate government developments from the 12th July 2003 he became Secretary of state for Constitutional Affairs and still overseas all judicial appointments. He makes the majority of appointment decisions on his own, senior ones (Lords of Appeal in Ordinary, heads of division, Lord Justices of Appeal) officially are made by the Queen on recommendation from the Prime minister on the advice of the Lord Chancellor.
However it is truthful to say that there is no judge today who hasn't received the approval of the Lord Chancellor. The concentration of power in one pair of hands is wholly unsatisfactory it abrogates any possibilities of independence. This is seen more specifically by the contravention of article 6 of the European Convention on Human Rights (ECHR), (after the incorporation of this into our domestic law) shows through the subsequent case of McGonnell v United Kingdom11 where the twofold post played by the Bailiff of Guernsey, where he acts as legislator and judge was help to violate the right to a fair and impartial trial. This was yet another embarrassment for the British government and their anomaly ridden system.
Potential candidates so far have been easily overlooked and the notorious lack of ethnics and women. What is seen is an elitist, middle class, Oxbridge educated, out of touch group of old men and the facts do not seem to disagree. Some 78% of senior judges are white, male, public school and Oxbridge educated. Women are in very short supply, for there are only three out of 33 in the court of appeal.
The High Court is still awaiting an ethnic minority judge. But does this make them bad judges? Do our judges need to be more democratic and representative of society as a whole? The academic writer Fred L Morrison12 comments perceptively that even though the judges most likely will be similar in "educational, professional and judicial backgrounds", even members of the same "inns of court" and "social clubs", this may be seen as a positive thing.
If all judges within the system are upon a similar sphere of thinking it makes tasks such as "screening" cases for higher tribunals easier. The current appointments process is not necessarily favouring the white, male middle classes as more eligible candidates. Women and ethnic minorities will be just as capable of carrying out the judicial role, however we don not see this diversity. To increase legitimacy of their power the new appointment process will need to address these issues