There has always been an underlying tension between the judiciary and the executive but with International Terrorism taking center stage both internationally and politically such tensions have been brought into a new light, with each body trying to fulfill its own constitutional role. This problem is only heightened due to the doctrine of parliamentary supremacy, wherein parliament may pass any law it wants. This doctrine is inherently dangerous but the judiciary has always stood as a bulwark against the abuse of wide discretionary powers by over powerful governments.
If the judiciary were to become corrupted and besmirched by politics there would be no defence left against the abuse of such powers. We would be left with powers dating back to Draconian times all in the name of safety and security. Whilst the Government has to been seen to be doing something to combat the threat there cannot be in a free democracy no checks or restraints on the Government. An independent judiciary is therefore a pre-requisite for parliamentary supremacy. "Ultimately, in any democracy, the independence of the judiciary is essential to protect the public from governments exceeding their democratic powers"1
Parliamentary supremacy is the driving force behind where the executive gains the vast majority of its power and with a substantial majority in parliament and accompanied with appropriate party discipline, can get any legislation it wants through parliament. The problem lies in times of emergency such as with the threat posed by terrorism It is the constitutional role of the executive to protect the British way of life and thus the Government must be seen to be taking quick and effective action against those who would seek to destroy the very fabric of our society.
Such haste often leads to problems with legislation being ill thought out and over-bearing, trampling on the heads of the minority. It is the judiciary who must protect these individuals through interpreting what parliament not what the executive wants. This is much to the disdain of the executive which feels that the judiciary is being overly active and should leave such sensitive issues to the executive to decide. 2 The judiciary claim that they are only doing their job and that unless they take on this role the rule of law, a hallmark of British freedom, will in effect be nullified.
"They are responsible for the Rule of Law in this country; they should not be pilloried by politicians for interpreting independently the welter of laws Parliament has passed. Ministerial bullying of the judiciary via the national media is an unsavory sight in a free democracy"3 It is ironic therefore that the executive gains much of its power through the rule of law. The principles from which the rule of law stems from namely that the Government must follow the law and show legal authority for its actions, all point towards the need for judicial independence.
Under parliamentary supremacy the executive can shroud any piece of legislation with a veil of legality, even the most controversial. Thus it is imperative that the rule of law goes beyond mere legality and that it has underlying legal and moral principles which govern the laws enacted by parliament. It is on this third and final principle that the issue of judicial independence comes into the fray. When there is a state of national emergency such as the threat of terrorism a balance has to be struck between the need to conform to legal principles and other competing claims such as the threat posed by international terrorism.
But who decides where the line should be drawn? It almost certainly has to be drawn by the judiciary. Whereas the politicians have to deal with public opinion, on which their political careers depend, the judiciary should be impartial and neutral to such concerns and are thus better equipped to lay down the principles on which our law should be based upon. It would folly to allow the executive to draw this line themselves. If it was left to the executive to decide there would be no limit to the powers they may give themselves.
It has been the judiciary that has prevented such abuses of power under new terror legislation, as highlighted by the Belmarsh4 decision in which the Lords ruled in an 8-1 majority that indefinite detention without trial was against human rights. It would therefore be unconstitutional and unacceptable in a modern democracy for the executive to have powers without limits placed upon them by judges. "Every legal power must have legal limits, otherwise there is a dictatorship. "5 Thus it is vital that the judiciary remains independent so that it can adequately curtail the legal powers of the executive.
If the courts take a back seat as the executive wants then we take a dangerous step towards arbitrary power and a possible loss of many of the freedoms we take for granted. The threat posed by the executive encroaching on the independence of the judiciary is that the rule of law is being eroded; this gives rise to further tensions between the executive and the judiciary. This threat stems from the government's knee jerk reaction to the London bombings of July 7th. The general feeling emanating from government is that the normal rules no longer apply in such extreme situations and that the courts should stay out of parliament's way.
"The Prime Minister is trying in his own words to try to tear up the rules of the game"6 This is a source of further tension. On one hand parliament is right to ask for more leeway when it comes to such situations as it is privy to inside information from the intelligence services which the judiciary may not have. The judiciary on the other hand claims that in such situations it is even more important that it plays its role without interference. The government cannot be expected to find the balance between the need to protect the state and the need to protect society's fundamental rights.
"It is almost inevitable that… Parliament or Government will not strike the correct balance between the rights of society and the rights of the individual"7 Judges must therefore be independent of politics if they are to effectively strike the balance required. In essence the masters of the judiciary are not parliament or the executive. The judiciary is subordinate to the law and it is the constitutional duty of judges to enforce the law in a way that is compatible with the general principles laid down by the rule of law, which should stem from morals of society buttressed under the Human Rights Act 1998.
Thus when parliament enacts legislation that is contrary to the general principles enshrined by legislation such as the Human Rights Act of 1998 and the ECHR it is the courts duty to declare it incompatible and to interpret it in a way that is compatible. Such human rights legislation is now a corner stone for the rule of law and the principles it lays down. If the rule of law is threatened, and thus the judiciary, then who will protect the rights and freedoms of the minority? The principles of the rule of law most notably the third one regarding general principles prevent the Executive from overstepping its mark.