A crown duel in which justice rules supreme

The English Judges
December 19, 2003

It has become almost trite to observe that the judiciary in Britain has recently acquired vastly more constitutional power than it once had.

Whether the period under consideration is the past five or six years (since Tony Blair), the past 30 years (since Britain's entry into the European Community), or indeed the past century (since the great judicial slumber of the Edwardian era), the statement would be true.

Under new Labour, Britain has witnessed such constitutional reforms as the Human Rights Act, which significantly enhances the power and the influence of the judiciary. As judges of European Community law, the British courts have since 1972 been able to strike down Parliament's legislation, where they consider it to be in breach of community law, an apparent reversal of the rule that until the middle of the 20th century had been regarded as the most important in the entire constitutional order, namely, the sovereignty of Parliament.

Even before 1972, the courts had been slowly increasing their powers to intervene in government decision-making, through the expansion of the law of judicial review. Robert Stevens has been a student of these changes since the 1950s, and his latest book is a chronicle of much of what he has observed over that time.

The book is described by its publisher as being "new", although the bulk of the material it contains has already been published, as Stevens acknowledges. Most of it was originally written for delivery as public lectures and, as such, the book possesses great readability and a welcome lightness of touch.

The editing, however, could have been more rigorous. There is some unnecessary repetition and the order of chapters is a little odd. The book opens with an important piece of historical research on the Act of Settlement of 1701, a legal instrument that played a central role in developing a judiciary independent of the crown. The judges had repeatedly shown themselves to be anything but independent of the crown as the ancient constitution collapsed around them in the early 17th century: indeed, after the ship-money case in 1637, Parliament gave up any attempt to limit the crown's prerogative through the courts, as it came to appreciate that restrictions on the power of the crown would have to be imposed by Parliament itself.

If it is a curious feature of the Restoration period that there was such a lengthy interlude between the return of the crown (in 1660) and the formal establishment of the terms on which the crown was restored (in the Bill of Rights of 1689); it is perhaps even more surprising that Parliament did not get to the judges until 1701.

Stevens follows his outline of Parliament's purposes in passing the Act of Settlement with the first of a series of narrative chapters in which the story of the judges' constitutional role is told chronologically, starting in 1900 and finishing in 2002. It is quite a jump from the Act of Settlement to the Edwardian era, as it is from the analysis of late Stuart constitutional politics in the first chapter to the more descriptive account of 20th-century judging that follows. Nonetheless, the chronology continues until we reach 1997, at which point the narrative breaks off, and we are treated to two analytical chapters that consider some of the more difficult aspects of the concept of judicial independence.

This is a concept that was central to the Act of Settlement, but in his treatment of that act Stevens leaves aside the two most pressing questions that arise when judicial independence comes under consideration: namely, from whom is it that judges should be independent - the crown, Parliament, government, media or electorate - and who do we mean to protect under the rubric of judicial independence? Is the doctrine concerned with protecting individual judges from dismissal or with ensuring that the judiciary collectively possesses its own constitutional authority that does not depend on that of other constitutional actors, such as the crown or Parliament? Rather than considering these questions alongside his discussion of the Act of Settlement, Stevens saves them for two chapters curiously located in the middle of his book.

After these two chapters, the book returns to the chronological narrative, and a consideration of the changing judicial role under new Labour. All the expected highlights are featured, from the political involvement of Lord Irvine as lord chancellor to the fiasco of the Pinochet litigation (when a law lord failed to disclose his association with Amnesty International, which had intervened in the case), and from the introduction of the Human Rights Act to the bruising encounters between the judges and home secretary David Blunkett over a range of immigration, policing and sentencing issues.

If an overall thesis emerges from Stevens' account, it is the familiar one that over the course of the 20th and 21st centuries judges have played an increasingly prominent constitutional role, are playing an increasingly prominent role, and are likely to continue playing an increasingly prominent role. He closes his discussion with a brief analysis of whether Britain needs a separate Supreme Court with a suitably grand building of its own to replace the judicial committee of the House of Lords that currently squeezes itself into a committee room upstairs in the Palace of Westminster.

But the future of constitutional judging is not really about the architecture that houses their lordships as much as it is about what it is that they should be doing. And on this, the pivotal issue, Stevens is curiously silent. Should the judges be able to overturn the legislation of Parliament and, if so, under what circumstances? Should we continue to turn to them to chair sensitive public inquiries? Should unelected judges, rather than the democratically accountable home secretary, determine how long prisoners should remain in jail? These are the tough questions that will shape the future role of the English judge.

A student of the judiciary as experienced as Stevens must surely have his own answers, but in this account he has chosen to keep them to himself. The book is all the poorer for that.

Adam Tomkins is professor of public law, University of Glasgow.

The English Judges: Their Role in the Changing Constitution

Author - Robert Stevens
Publisher - Hart
Pages - 169
Price - £22.50
ISBN - 1 84113 226 8

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