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United Kingdom Constitutional Reform: Recognition of Judicial Independence and an Opportunity for Institutional Autonomy

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United Kingdom Constitutional Reform: Recognition of Judicial Independence and an Opportunity for Institutional Autonomy United Kingdom Constitutional Reform: recognition of judicial independence and an opportunity for institutional autonomy. By Josie Kemeys A thesis submitted to the University of Birmingham for the degree of Magister Juris University of Birmingham Research Archive e-theses repository This unpublished thesis/dissertation is copyright of the author and/or third parties. The intellectual property rights of the author or third parties in respect of this work are as defined by The Copyright Designs and Patents Act 1988 or as modified by any successor legislation. Any use made of information contained in this thesis/dissertation must be in accordance with that legislation and must be properly acknowledged. Further distribution or reproduction in any format is prohibited without the permission of the copyright holder. Abstract Recent UK constitutional reforms disclose an opportunity to recognise institutional autonomy as a means of enhancing the existing principle of judicial independence. This thesis explores the recent reforms and the impact they are having on the existing principle of judicial independence, with a view to recommending the notion of institutional autonomy as a means of further securing that independence. The rationale for further legislative protection and investigation of this constitutional principle is found within the requisites of the rule of law. The method for achieving a sufficient degree of institutional autonomy is a stricter adherence to the separation of powers doctrine. The notion of institutional autonomy is considered in detail and the various elements are outlined. These are then applied to the United Kingdom Supreme Court to assess the current degree of institutional autonomy and make recommendations for ensuring greater independence in accordance with the intentions of the CRA 2005. For Nan. Acknowledgements Many thanks to those who supported me in all aspects of the completion of this thesis: my supervisors at the University of Birmingham, Graham Gee, Sophie Boyron and previously, Dr Elizabeth Wicks; my colleagues at Gloucestershire College; my close friends; and finally, my family. Your continued patience and support over the last three years has been invaluable. Thank you. TABLE OF CONTENTS CHAPTER 1 - AN INTRODUCTION - Rationale 1 - Constitutional Reform in the United Kingdom 3 - Constitutional Reform Act 2005 11 - Judicial Independence 17 - Rule of Law 23 - A Separation of Powers 27 - Increased Autonomy 30 CHAPTER 2 - INSTITUTIONAL AUTONOMY - Institutions 34 - Requisite Elements of Effective Institutional Autonomy 47 - Budgetary Freedom 47 - Administrative Freedom 54 - Unnecessary Interference 57 - Levels of Institutional Autonomy 66 CHAPTER 3 - INSTITUTIONAL AUTONOMY AND THE UNITED KINGDOM SUPREME COURT - Institutional Autonomy and its impact in the United Kingdom 72 - The Development of Legislative Provision 80 - The UKSC: an analysis of its institutional autonomy 84 CHAPTER 4 - THE FUTURE FOR INSTITUTIONAL AUTONOMY - The UKSC’s institutional autonomy: an evaluation 106 - The evolving role of the UKSC 109 - Development of the notion of Institutional Autonomy 111 BIBLIOGRAPHY 113 ~ 1 ~ CHAPTER 1 – AN INTRODUCTION Rationale This thesis will primarily consider the meaning and use of the term “institutional autonomy”, within the parameters of the United Kingdom (UK) constitution. The Constitutional Reform Act 2005 (CRA 2005), among other recent reforms outlined below, provides statutory recognition of judicial independence for the first time- and, as will be demonstrated by this thesis, provides an opportunity for institutional autonomy.1 Recent reforms such as the alterations to the office of Lord Chancellor, the creation of the Judicial Appointments Commission and the new Supreme Court for the UK, are all reflections of how an independent judiciary may be able to strengthen the rule of law. As will be discussed throughout this thesis, many commentators point to the lack of clarity regarding the true meaning of judicial independence and how, in turn, it should be upheld under the Constitutional Reform Act. Now seems to be an opportune time to make suggestions for how this independence may be further enhanced. The term institutional autonomy is an additional perspective from which to view fundamental principles such as judicial independence, the rule of law and the separation of powers. Acknowledgement of this term will lead to a judiciary with increased self-government and the ability to function in a more independent manner. The independence of individual judges, while important, is not a primary concern of this thesis but it is rather the collective independence of the judiciary and judicial institutions that is to be focused upon. From an institutional perspective, the reforms have been particularly significant. When there are such significant alterations to institutions such as the House of 1 The provisions relating to judicial independence, and of use here, are sections 1, 3 and 23 of the Constitutional Reform Act 205, ch.4. ~ 2 ~ Lords, it must be examined why those changes were made. Why was it felt necessary to remove the judicial element, the Law Lords, from the House of Lords? And what benefits were hoped for in creating an entirely separate Supreme Court? Have those hopes been realised? These are all important questions that this thesis will strive to answer. While related principles and details will be discussed where necessary, the Supreme Court for the United Kingdom will provide the focus of this research. This thesis will argue that the institutional autonomy of the UK’s highest court must be enhanced due to the changing nature and role of the Court. This argument is supported by the focus on judicial independence in the drafting of the CRA 2005: demonstrating the need for clearer separation and autonomy to clarify the relationship between the judiciary and the other branches of government. Although there is no substantial research on the subject of institutional autonomy itself, related ideas and principles have been researched extensively for hundreds of years and provide a basis from which institutional autonomy can develop.2 Much research has been done discussing the place within the constitution of the main constitutional principles such as judicial independence, the separation of powers and the rule of law within the British constitutional arrangements; and the links and relationships between these principles is a topic for debate.3 For example, the rule of law calls for an independent judiciary, and the CRA 2005 calls for greater independence in order that the rule of law may be strengthened.4 Although the value of the rule of law is widely recognised, identifying the ways in which to strengthen it would be beneficial to many constitutional actors and protect 2 These main ideas include judicial independence, the rule of law and the separation of powers. 3 S Burbank and B Friedman (eds.), Judicial Independence at the Crossroads: an interdisciplinary approach (Sage Publications, California 2002). P.H. Russell and D.M. O’Brien, Judicial Independence in the Age of Democracy: critical perspectives from around the world (University Press of Virginia, Virginia 2001). M.J.C. Vile, Constitutionalism and the Separation of Powers (OUP, Oxford 1967). NW Barber, 'Prelude to the separation of powers' (2001) CLJ 59, 88 gave further context to the ideas and considers others. 4 Part 1, Constitutional Reform Act 2005. ~ 3 ~ individuals at all levels. Each of these principles, and the research surrounding them, will be considered in some detail below. Due to the ambiguity of our constitution and the lack of a single, constitutional document, there is no clear-cut explanation of each principle and how it should be applied. A critical discussion of the understanding of each will allow conclusions to be drawn as to the role the notion of institutional autonomy may play in fortifying their existence. Constitutional Reform in the United Kingdom The process of constitutional reform in the UK is not new, however since 1998 there have been a series of fundamental constitutional changes in the United Kingdom with the process of reform including the CRA 2005. A number of factors have influenced reform agendas, none more so than the consequences of the UK’s membership of the European Union and the incorporation of the European Convention on Human Rights in domestic law by way of the Human Rights Act 1998. These changes, along with the growth of judicial power through judicial review, have meant that there has been a renewed focus on the functions of the judiciary and their independence. In his recent book, The New British Constitution, Vernon Bogdanor discusses how the recent constitutional reforms have resulted in significant changes and argues for the creation of a new constitutional order.5 The overall aim of constitutional reformers, it is felt by Bogdanor, is to improve the quality of government, done, in part, through increased emphasis on the importance of a clearer separation of powers. As a result of this aim, it became clear that the 5 V Bogdanor, The New British Constitution (Hart Publishing, Oxford 2009). ~ 4 ~ position of several judicial elements in the constitution needed addressing: the office and role of Lord Chancellor, the position of the Law Lords in the Upper Chamber and the need to ensure judicial appointments were made on a more transparent and non-partisan basis. Professor Bogdanor also gives an interesting explanation for the reasons why Britain has never codified its
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