The judiciary is the branch of government that is responsible for deciding legal disputes and which presides over the court system. The chief role of the judiciary is to define the meaning of law. In this sense, judges interpret or ‘construct’ law.
The Rule of Law
The rule of law is the principle that the law should ‘rule’ in the sense that it applies to all conduct and behaviour and covers both private citizens and public officials.
The most important subprinciples of the rule of law are that no one is above the law, that there is equality for all before the law, that the law is always applied and that legal redress is available through the courts.
Judges are meant to be independent and politically neutral. The independence of the judiciary is maintained through the appointment process, security of tenure, arrangements for their pay, freedom from criticism and the independence of the legal profession.
Judicial neutrality is maintained by political restrictions on judges, their legal training and expertise, their accountability through the appeals system and the fact that judges are not meant to be public figures.
Significance of the Judiciary
The judiciary has become more politically significant in recent years through clashes between judges and ministers over civil liberties.
The key civil liberties are freedom of speech, freedom of the press, freedom of religion and freedom of association. The main ways in which the judiciary can protect civil liberty are through judicial review and via the Human Rights Act 1998.
Human Rights Act
The Human Rights Act incorporated the European Convention on Human Rights into UK law. Although it is not ‘higher’ law, it can be used to call other laws into question. It therefore hovers somewhere between an ordinary statute law and an entrenched bill of rights.
Conflict in recent years between senior judges and the executive has been the result of several factors.
These include the growth of a human rights culture amongst the senior judiciary, the wider powers the judiciary has gained through the Human Rights Act and the (perceived or actual) trend for governments to have more authoritarian, expanding their own powers often at the expense of civil liberties.
The Constitutional Reform Act 2005 has strengthened the independence of the judiciary.
It also provides for the replacement of the House of Lords by a Supreme Court. The reform process and debate initiated by the Human Rights Act has created the possibility of the introduction in the UK of a bill of rights. An entrenched bill of rights is a controversial issue, largely because it would significantly enlarge the political role of judges, for better or worse.