THE POLITICS OF JUDICIAL INDEPENDENCE IN THE UK’S CHANGING CONSTITUTION

Vol. 26 No. 6 (October 2016) pp. 121- 124

THE POLITICS OF JUDICIAL INDEPENDENCE IN THE UK’S CHANGING CONSTITUTION by Graham Gee, Robert Hazell, Kate Malleson, and Patrick O’Brien. Cambridge: Cambridge University Press, 2015. 293pp. Cloth $99.00. ISBN: 978-1-107-06695-3.

Reviewed by Benjamin Bricker, Department of Political Science, Southern Illinois University Carbondale. Email: brickeb@siu.edu.

THE POLITICS OF JUDICIAL INDEPENDENCE IN THE UK’S CHANGING CONSTITUTION captures an important point, one that might have been missed by many non-UK watchers: the country’s judicial system has experienced massive change over the past decade, driven largely – but not completely – by the Constitutional Reform Act (CRA) of 2005. Wholly new institutions have been created, perhaps most notably the establishment of the new UK Supreme Court. Yet the changes do not end there. Judicial appointment procedures have changed from an informal, clubby old-school-ties network to one that is now highly regulated by statute. The old duties of the Lord Chancellor, a public office straddling the executive, legislative, and judicial branches that oversaw the judicial system from the British cabinet, have been radically reformed, as well. It is in this environment of tumultuous transformation that Gee, Hazell, Malleson, and O’Brien examine the evolution and change of what they term “the politics of judicial independence” in the United Kingdom (p. 1).

Using over 150 confidential interviews with judges, politicians, and civil servants in various levels of the UK political, judicial, and civil service systems, the authors examine the evolving and increasingly formal relationship between the judicial and the political realms of government. This major empirical undertaking was carried out between 2011 and 2013 – well into the period of change described in the book. The use of elite interviews from all areas of government is significant to their overall focus: the authors’ main premise is that judicial independence is a political achievement and must properly be understood as a part of politics – not apart from politics (p. 9).

Studying the day-to-day interactions of the judicial and political branches has real benefits for the study of courts and judicial independence. The authors note that too often discussions of judicial independence and accountability are focused on the relatively rare instances of conflict between politicians and judicial branch: limiting judicial salaries, curbing court jurisdiction, or impeaching judges (p. 92). Since most of the work of creating and, particularly, maintaining judicial independence is done informally through reasoned discussion among the branches of government, focusing on these day-to-day interactions offers a broader, more comprehensive examination of political efforts to both advance and limit judicial independence.

The authors begin by describing their conception of judicial independence and accountability, and how these dual concepts fit into their larger argument. To outsiders, the concept of judicial independence in Britain can be a difficult mix of both autonomy and subservience. In the traditional story, the English common law courts won their independence from the Monarchy after the Glorious Revolution in 1688. Yet, the model of parliamentary supremacy that arose from 1688 also meant that the courts ultimately were answerable to parliament (see Shapiro 1981). Thus, for many years, judicial decisions were subject to ultimate review by the Law Lords, a committee within the upper house of parliament that sat as the ultimate appellate body for law and jurisprudence.

We see this different perspective in the authors’ discussion of judicial independence in the UK. With judicial independence a product of the political process, the authors focus equally on the need to maintain judicial accountability. Though many common definitions of judicial [*122] independence work from the assumption that independence is ensured when judges are able to make decisions without undue influence from the political branches or other outside forces, the authors emphasize that judicial independence must work in tandem with the need for judges, as public servants, to maintain accountability to the people. Their conception of judicial independence and accountability is interesting and thought provoking, and works well with the view that judicial independence truly is a protection for society as a whole, not simply for the judges within the political system.

In the larger sense, their concern with independence and accountability matters because the multitude of changes to the judiciary have recalibrated the politics of judicial independence in the UK. If the “old” politics of judicial independence were characterized by informality and flexibility within the political and judicial classes, the “new” politics of judicial independence has seen an increasingly formal separation of the political and judicial worlds. The benefits of this new system, as well as potential concerns, are discussed throughout the remainder of the book.

The break line between the “old” and “new” politics of judicial independence roughly correlates to the changes enacted within the Constitutional Reform Act of 2005. Our first introduction to these fundamental transformations focuses on the alteration of the duties of the Lord Chancellor’s office. Historically, the Lord Chancellor was a unique (or, as the authors state, “bizarre”) officer in government, serving as the formal head of the British judicial system, but doing so from within the executive branch of government while also holding the position of Speaker of the House of Lords (p. 32). Using interviews and descriptive accounts, the authors focus on key changes to this job, notably the replacement of the amorphous but expansive powers of the “old,” pre-2005 Lord Chancellor with the more defined and more limited power of the “new” post-2005 Lord Chancellors. The “new” Lord Chancellor is basically an executive office, with the Lord Chief Justice now the formal head of the judiciary. Thus, the new Lord Chancellor serves less as a “buckle” holding together the executive and the judiciary than as a true minister in the cabinet (p. 31).

Given that the Lord Chancellor has long been an executive official, one might think that eliminating direct executive control while also giving judges more direct power over their own affairs would be seen as advantageous by the judges themselves. Yet, an interesting wrinkle appears within the authors’ interviews: many judges and attorneys have long looked to the Lord Chancellor (at least the old version) as the protector of judicial independence from within the executive branch. With a new, more arms-length Lord Chancellor in the executive, the concern expressed by some interviewees is that judges will slowly lose the Lord Chancellor’s protection and thus be subject to increased pressure and intimidation by politicians (pp. 50-51). Several interviewees noted the relational aspect of the old Lord Chancellor’s role: by talking to ministers, Lords, and MPs in government while also fostering relationships with senior judges and members of the bar, the Lord Chancellor historically facilitated dialogues between different camps of the UK’s governing elite. Thus, greater formal independence could lead, paradoxically, to a loss of judicial protection within government. A subsequent chapter describing recent battles over court pensions, salary, and other budgetary matters also illustrates some of the concerns that arise when politicians become indifferent to their partnership with the courts.

Yet, perhaps the biggest transformation arising from the UK’s ‘changing constitution’ is the creation of a new UK Supreme Court. Until the establishment of this new Supreme Court in 2009, the Law Lords, a committee of the upper house in parliament, sat as the court of final appeal. The creation of this new court was, as the authors note, a distinctly political project begun during Tony Blair’s reign as Prime Minister. In fact, many judges were shocked to discover a proposal in which the top court would no longer be contained within parliament. It is in describing the creation of this new court that the authors are able to show most clearly one of the fundamental purposes of the CRA: the new separation [*123] of the political world from the legal world as well as the functional withdrawal of the political branches from the judicial realm.

Separation and formal independence in this new environment allows for greater autonomy, but also can carry potential risk. Further chapters describe the changing, increasingly formal relationship between the judiciary and parliament that has accompanied the formal separation of the judiciary from the legislative branch. One change has been the increasing role of judges as account-givers and witnesses in parliamentary committee hearings. Though the prospect of judges being called to testify before parliament might seem concerning to many readers, the authors’ interviews find that, so far, these hearings have not proven to be harmful to the independence of the judiciary, due in large part to the role that certain select committees have taken as guardians of judicial interests (p. 123).

Later chapters discuss appointments in England and Wales. The old system, in which the Lord Chancellor had wide discretion to name individuals to become judges, has been replaced with one that is, on its face, remarkably formal and bureaucratic. Moving away from a system in which an informal ‘tap on the shoulder’ led to entry to the courts, the authors describe a process of judicial appointments today that might seem very familiar to readers who have dealt with a university tenure-track hiring process, replete with committees, hiring guidelines, interviews, presentations, approvals, and further approvals. Additionally, the judges themselves now have much greater control of the hiring process. Yet, this autonomy over appointments also carries some concern regarding the accountability of the judiciary to the people. Like the cautionary tale of the Chilean judiciary told by Lisa Hilbink (2008), author interviewees note that with the increased formality there now exists the potential problem of an isolated, “self-perpetuating” judiciary (p. 187).

Overall, the authors do a remarkable job of describing in detail the full panoply of changes to the UK judiciary, and potential concerns – both regarding independence and accountability – that those changes have spurred. There are some aspects of the book one can quibble with. Some major figures in the ongoing story are introduced without a good description of how they fit into the UK’s political and legal system. Further, certain aspects of the UK legal system are assumed, not explained. This may cause some limited confusion for those readers not versed in the practices of the UK legal system.

Similarly, the chapter on judicial appointments does a very good job of describing the change from an informal to a highly structured system of appointments. Still, reference to the changing nature of appointments in other countries, either from the common law tradition or from elsewhere in Europe, could also illuminate the difficulty between independence and accountability. For example, the newer democracies in Central and Eastern Europe underwent significant change in their judicial systems as a condition for entry into the European Union. Many adopted new judicial institutions and removed direct executive control of the judicial system. Though the book’s focus plainly is on the United Kingdom, some reference to similar changes in other systems could also provide greater context for the changes occurring in the UK.

THE POLITICS OF JUDICIAL INDEPENDENCE IN THE UK’S CHANGING CONSTITUTION would make an excellent reading choice for graduate level courses on judicial politics or comparative judicial politics, as well as courses in law school or graduate school relating to constitutionalism, constitutional development, judicial decision-making, or separation of powers. Further, the reading style is very accessible, which could also make certain chapters well suited for advanced undergraduate courses. The book is ideal for those who seek greater insight into the structural changes occurring within this very important legal system, as well as those interested in judicial independence, separation of powers, and organizational change more broadly. Overall, the authors have created an important contribution: an in-depth, critical examination of the processes and interactions [*124] between political and judicial actors during a time of immense, yet (at least in my estimation) often overlooked change in the United Kingdom.

REFERENCES

Hilbink, Lisa. 2008. “Agents of Anti-Politics: Courts in Pinochet’s Chile.” In RULE BY LAW, eds. Tom Ginsburg and Tamir Moustafa. New York: Cambridge University Press, pp. 102-131.

Shapiro, Martin. 1981. COURTS: A COMPARATIVE AND POLITICAL ANALYSIS. Chicago: University of Chicago Press.

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© Copyright 2016 by author, Benjamin Bricker.