Parliament began fulfilling a judicial role in England in the period after the 12th century. The Commons (such as it was) was taken out of this role in 1399. With regular parliaments and an increasingly sophisticated judiciary, the house of lords gradually created special committees to handle what was now an appellate role. This was the state of affairs when the USA created its Supreme Court in 1789. In 1875, a provision was made for special lifetime appointments to the House of Lords for the sole pupose of being a judge. These were the first life peerages and created what were known as the "Law Lords." The Law Lords were increasingly professionalized. Now in the 21st century, the UK has finally done what its colonies were capable of in the 18th century: create a real independent supreme court. Hard not to be a bit snarky. This was authorized by parliament in 2005. It took its seat yesterday and began to hear cases. You can see at www.supremecourt.gov.uk. This is a parallel to www.supremecourt.us.gov . The new Supreme Court of the United Kingdom does not apparently have the right to declare acts of parliament to be unconstitutional. Well, there's still no written constitution, so what can you do?
Thursday, December 03, 2009
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Justices on the Supreme Court can be removed by a majority vote of Parliament. Since the UK operates a single member district system and tends strongly towards single party majority governments in Parliament, this means - de facto - that the Prime Minister can remove any justice whenever he or she wishes to.
This means that the independence of the British judiciary continues be practically zero. The only constraint on political interference with judicial actions is the fear that voters will punish Prime Ministers' excesses.
It is amazing to me that, except for some details, the institutional structures that Franklin, Jefferson, Madison et al decried as tyrannous are essentially the same in the UK now as they were in 1775. Prime Ministers are effectively elected dictators. Indeed, today's PMs may be more powerful because party discipline now is far greater than it was in the 18th century.
Wow. I just looked at the act. In theory there is no change: even the Law Lords could be removed by act of parliament. But that's a very different matter when the Lords are also members of parliament and of a distinct house of parliament jealous of guarding its rights. The Lords won't protect the Justices they way they likely did their own.
Of course, my analysis suggests that the Law Lords were considered to be members of the house of Lords by the fellow Lords. Since 1875, however, they have been separately appointed for life peerages for the sole purpose of being Law Lords. So it may be that the UK was already effectively acting under the current regime, and that by custom considers removal by act of parliament to be a sort of 'nuclear' device. If so, the practical effect of the change will be modest.
Still, RBR, your point is well taken. Not a single check or balance in the whole system.
Actually, Bell Curve, your comment makes me think that this is probably more about getting rid of the House of Lords altogether than reforming the judiciary.
By removing the most relevant function played by the House of Lords, there is now little reason for its continued existence. Abolition of the House of Lords is very popular among Labour party activists and voters. Gordon Brown may be setting up a major fight over the Lords as a gamble to win reelection.
Of course, this has been in the works for years but it would be a good idea for Brown to take advantage of this by forcing the supposedly reformed Tories to come out strongly in support of the House of Lords (which is a waste of money and probably looks bad in times of economic trouble for most Britons).
For some really bizarre reason my post (LTG) went up as Bell Curve.
It did it again.
Identity Theft!
LTG, I think I logged in to check my e-mail on your laptop. That's probably the problem.
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