How And Why Has The Relationship Within The Uk Between Politicians And Judges Changed Over The Last 30 Years?

2070 words - 8 pages

The gradual process of overlap between the roles of judges and ministers has occurred is a corollary to understanding the reasons as to why this has happened. In particular I shall be focusing on the relationship between judges and politicians over the last 30 years till present day. My discussions will inevitably refer more broadly to members of the judiciary and the executive (the Prime Minister, the Cabinet and other ministers) and an analysis of their interplay within the UK constitution. This is an exciting area of politics at the moment with major constitutional reforms taking place. I shall first discuss the doctrine of separation of powers as this forms the backdrop to the theoretical base upon which the relationship between the judiciary and executive is formed.Separation of powersThe roots of the separation of powers doctrine can be traced back as far as Aristotle. The modern doctrine has been espoused by the French philosopher Montesquieu in the 18th century. He suggested that government powers should not be left completely in the hands of one person or body and he identified three major functions of government. These were the legislative or law-making function, the executive or law-applying function and the judicial or law-enforcing function. He stated that the three functions should be kept separate in two ways; different persons or bodies should exercise each power and one branch of government should not exercise the power of another eg. the executive should not legislate. However, he accepted some overlapping as long as one function did not exercise the whole power of another function.In fact, Montesquieu's theory was derived from his observation of Britain's constitution. His theories were popular and were incorporated into several written constitutions such as those of France and the USA where there are an intricate set of 'checks and balances' between the three main branches of government. The UK's constitution can be traced back to medieval times when all three powers mingled and therefore now, we have markedly different constitutional arrangements to our counterparts. Over the last 30 years we have seen more sharing of powers between the judiciary and Parliament than a separation.The Lords of Appeal in Ordinary, the Lord Chief Justice and the Master of the Rolls all sit in the House of Lords when it acts as a legislature. Thus, the judges do have a legislative role as well but are not keen to acknowledge this as it contradicts the doctrine of separation of powers. They recognise that the public have grown used to the idea that the legislature is a body of elected representatives and they are not. In fact, they also recognise that they come from a narrow social and political band which is unrepresentative. One school of thought believes that the bulk of the judiciary does remain separate from government and Parliament. They are of the view that judge's independence is protected by a combination of statute law, common law and...

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