By John Noland
Much of the
world’s legal structures owe a debt to the United Kingdom. From the 1215 signing of the Magna Carta to
present, the British system has been a model for many nations around the world,
as they sought to shape their own judiciaries in a more just, fair, and orderly
manner. However, as time rolled on and
nations developed, British structure, in a nod to the importance of tradition
in that culture, stayed relatively unchanged.
The United States increasingly became the world’s legal benchmark, with
an independent, powerful judiciary granted the right to intercede and check the
vast powers of a strong legislature. In
the United Kingdom, however, the highest legal authority resided in the
legislature, emblematic and representative of the nonpareil power of British
Parliament.
In truth,
comparing the American and British judicial systems has a striking
apples-and-oranges feel. The
Constitution, so revered in the United States, serves as the basis of the legal
system. Laws that are deemed not to fit
the spirit of the Constitution, or that run in direct opposition to its
declarations are thrown out, without legislative oversight. The UK operates on a common law system, where
court decisions are made on precedent and adhere to certain traditional sources
of determinacy, like the Magna Carta. It
is perhaps thusly fitting that the final authority in these regards is located
in a structure, and more specifically, a chamber, that is so rooted in
historical conventions. Unlike the
checked and balanced, three-branch structure of the American federal
government, Parliament is the centerpiece to British governance. The head of government, his or her cabinet,
and (until recently) the highest judges in the nation are all members of the
legislature. Even the monarch, the head
of state in the United Kingdom, is accountable to Parliament.
Previously, the collection of the twelve
Lords of Appeal in Ordinary, or “Law Lords,” served as the highest court of
appeals in the UK. This configuration,
which existed from “1876 until 2009”, was eliminated by the Constitutional
Reform Act of 2005, which created an independent Supreme Court, and a system in
which “the senior judges no longer sit in the legislature” (Guardian). The House of Lords, the upper chamber of
British Parliament, is an appointed body of legislators, outside of the realm
of public control. This change could
mark a diminished role both for this body and Parliament in general, as “the
creation of a new Supreme Court means that the most senior judges are now
entirely separate from the Parliamentary process” (Supreme). Significantly, while these lords are the
“first justices of the 12-member Supreme Court,” they are “disqualified from
sitting or voting in the House of Lords” (Law).
In years past, these members could vote on, and potential debate or
propose the laws that they would be deciding later, which creates an arguably
dangerous role for an officer of justice intended to rule without bias.
While this change in centuries-old
procedure may be lauded as an important change, questions have been raised over
whether such reform is substantive in a meaningful way. Indeed, under the new law, the Supreme Court
“has no power to nullify acts of parliament as unconstitutional,” nor “it is
likely that appointments to the supreme court will now become politically
charged, in the manner of the US” (Guardian).
What is the point, then, or such changes to a tested system? This separation does mark an important move
toward a more balanced central government, and could be a sign that the British
government seeks to cultivate an independent judiciary away from what some may
view as an antiquated, undemocratic upper house. The Guardian editorial board seems to agree,
and while they may not believe that the reform will lead instantaneously to a
great deal of change, they conclude simply that “This is a good day for
grown-up government.”
Bibliography
"Law
Lords." UK Parliament. 2009.
Web. 06 Nov. 2013.
"Supreme
Court: Britain's October Revolution." The
Guardian. Guardian News and Media Limited, 30 Sept. 2009. Web. 06 Nov.
2013.
"The Supreme
Court." Judges, Tribunals and
Magistrates. Judicial Office, 2009. Web. 06 Nov. 2013.
Text of the
Constitutional Reform Act of 2005: http://www.legislation.gov.uk/ukpga/2005/4/contents
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