The former president of the supreme court on the relationship between the legislature, the executive and the judiciaryby David Neuberger / November 1, 2018 / Leave a comment
There are three branches of government, the legislature (parliament), the executive (ministers, the civil service, local government, etc), and the judiciary. Although there is overlap between the first two (because ministers are also members of the legislature), the rule of law requires judges to be truly independent of the other two branches, and it also requires the judiciary not to get involved in investigating what goes on in parliament.
The United Kingdom is unusual in having no overriding constitution, ie a set of rules which are binding on all institutions including parliament, which can only be changed by a parliamentary “super-majority” or referendum. So, for instance, until 2005, independence of the judiciary was simply a convention. Because we have no such constitution, the UK supreme court, unlike, for instance, the US supreme court, cannot refuse to apply, let alone to strike down, a statute enacted by the parliament on constitutional grounds, however objectionable the statute may be. It has been suggested that this would not apply in the case of a statute which was fundamentally inconsistent with the rule of law: I hope that that suggestion never has to be tested.
Accordingly, when they come to consider a statute enacted by parliament, the judges’ duty is simply to interpret the statute. However, over the years, judges have developed rules of interpretation which are quasi-constitutional in nature—eg that some statutes have a special constitutional status, and that “fundamental rights cannot be overridden by general or ambiguous words.”
As judge-made principles, these rules are part of the common law, which applies to any topic which is not covered by a statute. If the common law has become outdated or has taken a wrong turn, judges develop or correct it. The notion that judges should not interpret statutes in accordance with judge-made principles or that the common law should remain ossified is inconsistent with the UK’s flexible and pragmatic approach to laws, an approach which is particularly appropriate in a technologically and socially fast-moving world.
It is true that judges are unelected and thus lack democratic legitimacy. However, it would be inimical to the rule of law for power to be concentrated in the hands of one body, however democratic its credentials, and…