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A NOT SO HOLY TRINITY Luke Walpole

How does an ever-evolving Judiciary fit into the British Constitution? There’s something decidedly British about being different. Whether that’s a fascination with the weather, the love of an underdog or in this case, the structure of our Constitution, there is certainly a common theme. To strip the issue down, it must first be made clear how most ‘Democracies’ (used loosely in some cases) operate. Three houses of power, the executive/government, the legislature and finally the judiciary all perform their own functions. Across the Atlantic, they have a separation of powers, all three stand alone, whereas here, back in Britain, the executive and legislature are fused, leaving the Judiciary out on its own. Whilst other governmental organisations, notably the Civil Service, have been accused of inexorable politicisation, it is apparent that the judiciary has taken major strides in the opposite direction. A loss of power? ‘Surely not!’ I hear the bob-wigged community cry, but the facts do not lie; following on from the 2005 Constitutional Reform Act it is highly arguable that the judiciary’s prominence has been severely compromised. The Law Lords? Gone. The Lord Chancellor? Given a new title – Lord Chief Justice – and shifted to a more logistical post. A newly created Supreme Court and Judicial Appointments Commission are both independent, and thus have seemingly broken a long-standing tie between the legislature, notably the Lords, and the Judiciary. However, one thing still keeps the three houses of power indubitably linked; Judicial Review. As long as the appeal is based upon grounds of, as Lord Diplock described, ‘Illegality’, ‘Irrationality’ or ‘Procedural

impropriety’, then a claim can be made against the government, as long as it is not regarding primary legislation. In spite of the convoluted description, the reality is simple; judicial review is arguably stagnating the executive’s legislative power. In 1975, there were 160 cases of Judicial Review, whereas in 2013 it totalled a gargantuan 11,400. All this has put strain on relations between Whitehall and Westminster, as the ominous premonition of ‘Judicial Review’ makes policy creation come under enormous scrutiny. So what’s the answer for the Tories? In November 2012, at the CBI, David Cameron bullishly stated "If Christopher Columbus had an advisory committee he would probably still be stuck in the dock." It appears that someone’s not happy. Moreover, if Cameron is able to get his way then the Conservatives will be able to get out those trusty metaphorical scissors and cut to their heart’s content. But the reality is that the red tape is becoming too thick, so, in spite of calls from Cameron to “crack down” on “time wasting”, the truth is that it will be near impossible. The executive, judiciary and legislature will always be linked, but in the current day and age, the executive is undoubtedly exacting dominance over its ubiquitous counterparts, although the Judiciary is seemingly having the last laugh. ●

The Clarion-Winter 2013

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The Clarion  

The Winter 2013 issue of The Clarion - journal of Marling School law society

The Clarion  

The Winter 2013 issue of The Clarion - journal of Marling School law society

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