Subordinate or Autonomous?

Britain does not have a system like the USA where the Supreme Court acts as the ultimate interpreter of the constitution and pronounces upon the constitutionality of Congressional and state laws together with the actions of public officials. Britain judiciary has to bend its knee to the sovereignty of Parliament: it cannot make rulings on the constitutionality of Acts of Parliament. What are the essential characteristics of the judiciary in Britain?

First, in the trinity of the executive, legislature and judiciary, it is a subordinate institution. Public policy is made and ratified elsewhere. The courts exist to interpret (within defined limits) and apply that policy once enacted by the legislature. They have no power to strike it down.

The judiciary is subordinate to Parliament (in legal terms, the Queen-in-Parliament) in that it lacks the power to strike down any Act of Parliament as being contrary to the provisions of the constitution or to any other superior body of law. It was not always thus. The Glorious Revolution (1688) put an end to this state of affairs. Thereafter, the supremacy of statute law, under the doctrine of parliamentary sovereignty, was established.

The doctrine is a judicially self-imposed one. The common lawyers allied themselves with Parliament in order to remove the prerogative powers of the king and the prerogative courts through which he exercised them. The supremacy of Parliament was asserted by statute in the Bill of Rights of 1689.

Parliamentary sovereignty - a purely legal doctrine asserting the supremacy of statute law - became the central tenet of the constitution. However, the subordination of common law to statute law did not - and does not - entail the subordination of the judiciary to the executive. Courts retain the power of interpreting the precise meaning of statute law once passed and reviewing the actions of ministers and other public agents to determine whether they are ultra vires, that is, beyond the powers granted by statute. Government decisions - or those of any other public body - which are not taken within powers granted by statute enjoy no legal force. The courts cannot strike down Acts of Parliament. They can quash the actions of ministers which are not sanctioned by such Acts.

Secondly, it is autonomous. The independence of the judiciary is a much-vaunted and essential feature of the rule of law, described by the great nineteenth century constitutional lawyer A.V. Dicey as one of the twin pillars of the British Constitution. The other pillar - parliamentary sovereignty - accounts for the first characteristic, the subordination of the judiciary to Parliament. Allied with autonomy has been the notion of political neutrality. Judges seek to interpret the law according to judicial norms that operate independently of partisan or personal preference.

The judiciary is deemed to be autonomous of the other two branches of government. Its independence ‘is secured by law, by professional and public opinion’. Since the Act of Settlement, senior judges have held office ‘during good behaviour’ and can be removed only by the Queen following an address from both Houses of Parliament. Judges’ salaries are a charge upon the Consolidated Fund: that means that they do not have to be voted each year by Parliament. By its own resolution, the House of Commons generally bars any reference by Members to matters awaiting or under adjudication in criminal and most civil courts. By convention, a similar prohibition is observed by ministers and civil servants. MPs also generally recognize the convention that judges should not be criticized.

For their part, judges by convention refrain from politically partisan activity. Indeed, they have generally refrained from commenting upon matters of public policy, doing so not only of their own volition but also for many years by the direction of the Lord Chancellor.

However, the dividing line between judges and politicians, between judicial and political decision making is not quite as sharp as various features would suggest. In terms of personnel, membership of the executive, legislature and judiciary are not mutually exclusive. There is, particularly in the higher reaches, some overlap. The most obvious and outstanding example is to be found in the person of the Lord Chancellor. He is the head of the judiciary and exercises major judicial functions. Most judges are either appointed by him or on his advice. He is the presiding officer of the House of Lords (albeit a position entailing no significant powers) and a member of the Cabinet.

Given these characteristics - politically neutral courts separate from, and subordinate to, the central agency of law-enactment - a clear demarcation has arisen in recent decades. The study of the policy making process being the preserve of political scientists, that of the judiciary the preserve of legal scholars. There has been little overlap between the two. Consequently, few texts on British politics draw out and emphasize the role of the judiciary. Yet in practice the judiciary in Britain has not been as subordinate or as autonomous as the prevailing wisdom assumes. The dividing line between politics and the law is blurred rather than rigid.

Notes*

the Supreme Court - Верховний суд ultimate interpreter - (тут) остання інстанція тлумачення злочину judiciary, n. – судочинство trinity, n. – триєдність executive, n. - виконавчий, виконавець legislature, n. – законодавство to be enacted - вступати в силу, дію to strike down, v. - повалити, скинути, перемогти provisions, n. - положення, постанови to assert, v.- стверджувати, відстоювати

to be self-imposed - бути нав’язливим, настирливим, улізливим common law - звичаєве право to entail, v. - викликати, спонукати to quash, v. – анулювати to be much-vaunted - бути надміру розсхваленим adjudication, n. - судове рішення, судовий вирок to refrain, v. - утримуватися від to overlap, v. - часково покривати, перекривати, співпадати law-enactment, n. - прийняття закону, введення в дію to be blurred - бути розпливчатим, затуманеним, неясним

Talking Points*

Is the Supreme Court the ultimate interpreter of the constitution of GB?

What are the essential characteristics of the judiciary in Britain?

What’s “parliamentary sovereignty”?

Is the judiciary autonomous of the other branches of government?

How are judges appointed to their positions?

Unit 2

Дата добавления: 2015-08-18