The notion that the United Kingdom has moved towards a ‘legal’ constitution opposes the orthodox view put forward by Griffith that the conceptual idea of the constitution is that of a political one1. The ‘political’ constitution is a longstanding principle that is intrinsically linked to Dicey’s perception that ‘Parliament…has, under the English constitution, the right to make or unmake any law whatever’2. In more recent times however, this orthodoxy is being debated to a greater extent, arguably creating a theoretical dichotomy between political and legal constitutionalism. In this essay I will attempt to show that there has been a move towards a legal constitution and, as a result of this, there is a greater equilibrium between the legal and political.The move towards greater balance has undoubtedly lead to the need for a more diverse judiciary.
A legal constitution involves “a transfer of power from legislature to courts, both European and domestic”3, which therefore allows for legal mechanisms to hold the legislative and the executive to account. The accession of the United Kingdom into the EU and the enactment of the Human Rights Act 19984 (HRA) has been seen as the forefront of the move to a ‘legal’ constitution within the past three decades. Ewing saw this as “an unprecedented transfer of political power from the executive and legislature to the judiciary”5, thus suggesting a significant switch of authority governing the fundamental powers of the United Kingdom’s constitution, moving towards a legal constitution.
The deliverance of human rights to citizens through the enactment of the HRA gave courts greater discretion and judicial power. Arguably, the most important aspect of the Act in UK courts was sections 36 and 47 because these are the provisions that gave the courts greater power. Section 3 states that judges will be given the discretion to interpret legislation in a much broader sense, as long as their judgment does not alter the true meaning of the Act. This was evident in the case of Ghaidan v Godin-Mendoza8 where the majority read the legislation in a golden interpretive manner, allowing the wording of Schedule 1(1) of the Rent Act 19779 to be interpreted so as to extend to those living as if they were husband and wife, rather than as husband and wife in its literal form.
Section 4 allows the courts to issue a declaration of incompatibility. The case of Jackson10 made the courts intention clear with regards to their judicial power when there has been a human rights injustice. Lady Hale stated that “the courts will, of course, decline to hold that Parliament has interfered with fundamental rights unless it has made it clear its intentions are crystal clear”.11 Though this is consistent with the European Court of Human Rights (ECtHR) requirement that government must explain the reasoning with regards to proportionality of the infringed rights and this allows the government an element of power, it still confers a discretionary power on the courts that previously did not exist. Thus the United Kingdom is moving towards a ‘legal constitution’.
Though the separation of powers did not occur within the last three decades its impact with regards to both legal and political constitutionalism are vast. The separation of powers allowed the judiciary to hold the executive and the legislature to account, which largely gives rise to judicial review and as a consequence political accountability. The very notion that these aspects of the separation of powers can be held to account by the judiciary in itself, suggest that there is a move towards legal constitutionalism. This can be seen by Lord Steyn and Baroness Hale in the case of Jackson12 where it was explained that if parliament were to pass a law which effectively removed a fundamental right, they would consider the statute to be going against the rule of law, and thus they might choose to not apply such a statute13. Suggesting that the courts view their judicial power as considerably greater than they often choose to exercise. Though in this case this was obiter dicta and thus it’s application within UK may be limited.
Jowell argued that the principles of judicial review are means of giving effect to the rule of law in the British Constitution14 and thus are also giving effect to Bingham’s theory of 8 subsections15. Lord Mustill argued in the case of R v Secretary of State for the Home Department, ex party Fire Brigades Union16 that “Parliamentary remedies has on occasion been perceived as falling short”17 and thus “the courts have had no option but to occupy the dead ground”18 .Thus the notion of a legal constitution is not only proliferating but it is also considered necessary to provide a more efficient justice system that will benefit citizens and institutions.
However, Bellamy stated that, despite the UK’s uncodified constitution containing “two key elements of modern legal constitutionalism: the separation of powers and a bill of rights…Yet, from more or less the same period, Parliamentary sovereignty emerged as the distinctive constitutional feature of the U.K”19, consistent with Dicey’s ideology.This can be evidenced by the fact that courts cannot review the legality of primary legislation through judicial review as well as a lack of providing a legal remedy when issuing a declaration of incompatibility20, indicating that courts cannot scrutinise government as much as is often implied. This suggests that political constitutionalism still remains the paradigm despite the growing discretion of the judicial system.
With regards to the impact of HRA, it can be argued that it has been responsible for the emergence of the “rights as trumps’ ideology. Dworkin argued that “rights…are best understood as trumps over some background justification for political decisions that states a goal for the community as a whole”21 . This has meant that due to the ‘counter-majoritarian’ nature of judicial review22 this means that courts can protect against the infringement of basic rights of the majority over the minority. This can be illustrated by the Belmarsh case23 which shows the difficulty ‘rights as trumps’ brings as the government has to take into account public interest. The case involved suspects of terrorism being held under section 23 of the Anti-terrorism, Crime and Security Act24 which violated Article 1425 in conjunction with Article 526 of the HRA as it discriminated against foreign nationals. The courts applied section 4 of the HRA27 by issuing a declaration of incompatibility. The courts therefore had the ability to exercise their judicial discretion to enforce political mechanisms to apply pressure on the government to amend the law. Evidently therefore, whilst the courts have greater power, they often still rely on political remedies thus there are elements of both a legal and political constitution.
Furthermore, in the case of Mahmood28 it was stated that “The Human Rights Act 1998 does not authorise the judges to stand in the shoes of parliament’s delegates”29, contradictory to the words of Lord Steyn and Baroness Hale, suggesting that the authorities behind the judicial declarations are unsure themselves as to the limits to their discretion and that government has the ultimate authority. This was further evidenced by the case of Blackburn30 where it was stated by Lord Denning that “freedom once given cannot be taken away. Legal theory must give way to practical politics”31 It can therefore be argued that there is currently a balance between both existing political, and growing legal constitution, rather one leading theory.
Whilst the progressive increase of the legal constitution has been influential in the awareness of the need for a more diverse judiciary, it is important to note that there are other factors that have played a role in highlighting the issue that are likely of equal importance. The rise of social media and increases in technology within the last three decades have likely aided the understanding society has of their rights, in particular with regards to their rights to access to justice and fair trials.
Furthermore, as the UK has an uncodified constitution, we lack entrenched rights, thus the development of domestic rights was derived largely from the common law system. Whilst this gave citizens a fairly extensive amount of information, it may not have been available to them as efficiently as was necessary, thus the HRA was needed to set out a clearly defined list of rights which was more comprehensive than the scope afforded under the common law. However it is arguable that given the HRA has had such a large impact on the progression of the legal constitution, this simply furthers the argument that it was this that emphasised the need for a diverse judiciary.
Despite the previously mentioned factors evidencing the need we have for a more diverse judiciary, there is no doubt that judicial discretion and the legal constitution have highlighted the exigency for representative judges, to ensure the deliverance of justice within the United Kingdom. The current perception of the judiciary is that “the judge inhabiting the courtroom in England and Wales is stereotypically a white man from a narrow social background”32 . Not only is it thought that this a problem for a lack of confidence in the judicial system but also a lack of diversity and representation goes against fundamental rule of law principles.
To an extent our current judicial system can also be viewed as undemocratic due to the nature of the appointment process, regardless of the most recent reforms33 which somewhat eliminated the “tap on the shoulder system”34 that governed the appointment of judges in previous years. In the case of Mahmood35, this was made clear as it was said that “the arrogation of such power to the judges would usurp those functions of government which are controlled and distributed by powers whose authority is derived from a ballot box”36. Suggesting that with judges having greater discretion they can make decisions that arguably go against the government in power which was elected through the democratic process. This can become an example of when the law fails. Thus it has become a necessity for the judicial system to reflect society.
However Professor Cheryl Thomas stated that there is “limited empirical evidence that diverse judges can improve the decision-making process”37 . Lord Sumption also stated that “racial identity or gender are not relevant to a candidate’s ability to do the job”38 and this was evidenced by the most recent reform of the appointment process within the Constitutional Reform Act39 . Here it states that “selection must be on merit”40 and that the judges must “have knowledge of, and experience of practice”41 showing that the diversity that is legislated for and therefore viewed to be of importance is the diversity of experience, rather than diversity regarding gender and background. Thus there is no overwhelming need for a diverse judiciary.
To conclude, it has become evident, largely as a result of the HRA becoming enforceable in domestic law that the constitution is becoming more legally focused. However this has not eliminated the continuity of the political constitution and parliamentary sovereignty within the UK. Thus suggesting that as the legal constitution has progressed there is greater equilibrium between the fundamental powers that govern the UK, creating a less ‘pure’ separation of powers and diminishing the dichotomy between legal and political constitutionalism. As a result of this, and other factors it has become more evident the extent to which a diverse judiciary is necessary. As the judges have greater discretion it is important they reflect the population and their views, whilst still allowing them to be experienced and knowledgeable in their field. As a consequence of this it can be said that it is not an overwhelming need for the judiciary to be diverse, but in order for society to have greater confidence in the justice system, it is important to make moves towards greater diversity in the future.
References
1 J. A. G Griffith, ‘The Political Constitution.’ (1979) 42 (1) Mod L Rev 1.
2 A.V. Dicey, Introduction to the Study of the Law of the Constitution (8th edn, Macmillan & Co Ltd 1924) 38.
3 D Nicol, ‘The Legal Constitution: United Kingdom Parliament and European Court of Justice’ (1999) 5 (1) The Journal of Legislative Studies 135,135.
4 Human Rights Act 1998.
5 K Ewing, ‘The Human Rights Act and Parliamentary Democracy.’ (1999) 62 (1) Mod L Rev 79,79. 6 Human Rights Act 1998, s3.
7 Human Rights Act 1998, s4.
8 Ghaidan v Godin-Mendoza [2004] UKHL 30.
9 Rent Act 1977, Schedule 1(1).
10 R (on the application of Jackson) v Attorney General, [2006] 1 A.C. 262.
11 ibid, 318.
12 R (on the application of Jackson) v Attorney General, [2006] 1.A.C. 262.
13 ibid, (Steyn, L) (Hale, B).
14 J Jowell and others, The Changing Constitution (8th edn, Oxford University Press 2015) 29-33.
15 T. Bingham, ‘The Rule of Law’ (2007) 66(1) Cambridge Law Journal 67.
16 R v Secretary of State for the Home Department, ex parte Fire Brigades Union [1995] 2 AC 513
17 ibid, (Mustill, L) 567.
18 ibid
19 R Bellamy, ‘Political constitutionalism and the Human Rights Act’ [2011] 9(1) International Journal of Constitutional Law 86, 86-87.
20 Human Rights Act 1998, s4(6).
21 R Dworkin, ‘Is There a Right to Pornography?’ [1981] 1(2) Oxford Journal of Legal Studies 117, 200.
22 H Alon, S Adam, ‘Between Judicial and Legislative Supremacy: A Cautious Defence of Constrained Judicial Review’ [2012] 10 (4) International Journal of Constitutional Law 950-975 964.
23 A v Secretary of State for the Home Department [2005] 2 AC 68. 24 Anti-Terrorism, Crime and Security Act 2011, s23.
25 Human Rights Act 1998, Article 14.
26 Human Rights Act 1998, Article 5.
27 Human Rights Act 1998, s4.
28 R (on the application of Mahmood) v Secretary for the Home Department [2001] 1 W.L.R. 840.
29 ibid [33].
30 Blackburn v Attorney General [1971] 1 WLR 1037. 31 ibid, 1040.
32 UK Parliament Constitution Committee, ‘Constitution Committee 25th Report Judicial Appointments. Report’ (TSO 2012) 68.
33 Constitutional Reform Act 2005.
34 M Elliot and R Thomas, Public Law (3rd edn, Oxford University Press 2017) 272.
35 R (on the application of Mahmood) v Secretary for the Home Department [2001] 1 W.L.R. 840.
36 ibid, [33]
37 UK Parliament Constitution Committee, ‘Constitution Committee 25th Report Judicial Appointments. Report’ (TSO 2012) 26.
38 Supremecourt, ‘Home Truths about Judicial Diversity’ (Supremecourtuk, 15 November 2012) <https:// www.supremecourt.uk/docs/speech-121115-lord-sumption.pdf> accessed 5 January 2019.
39 Constitutional Reform Act 2005.
40 ibid, s27(5).
41 Constitutional Reform Act 2005, s27(8).