When we see that quote we usually conjure up images of Hitler or Stalin, of totalitarian regimes and oppressed citizens. We think of North Korea and a secret police. But Lord Acton’s words on power can be traced back to a much more domestic setting.
In Britain, judges have to declare their impartiality before they are allowed to do their job, and that’s how it should be. Without this (and all of the responsibilities that come with it) then we would have no way of being sure that the law applies to all citizens in the same way. Nowadays there is a commission which is in charge of the main process of appointing judges (rather aptly named the Judicial Appointments Commission) but this has only been the case for just over 10 years.
Before the catchily-titled “Constitutional Reform Act 2005” was passed, judges were appointed by a Lord Chancellor, he himself was chosen by the Prime Minister. The Lord Chancellor was not only in charge of appointing judges he was also the head judge in the UK. He and other senior judges sat in the House of Lords and were called Law Lords. This meant that the Lord Chancellor was a member of all 3 branches of government, the Judiciary (as head judge), the legislature (as a Lord), and the executive (as a member of the PM’s cabinet).
What the CRA did was move the Law Lords out of the House of Lords and created a Supreme Court to take over from their jobs. The Lord Chancellor was also no longer a Lord and removed from the Judiciary. The title was then merged with Secretary State for Justice, meaning it effectively became a cabinet position. The current Lord Chancellor is Michael Gove.
This removal of the Lord Chancellor from different branches of government is known as a separation of powers. Most countries do this as a default, as being in more than one branch of government is having too much power. In the United States someone cannot be a part of two branches - if somebody from Congress is elected President they must resign their seat before they can be sworn in. Yet in Britain being in more than one branch is a requirement to be PM! All members of the executive (government) must already be a member of either the Commons or Lords (legislature) before they can be given a government position in what is known as Parliamentary Government. But it raises some problems.
Prior to the CRA 2005, the PM and Lord Chancellor (both members of the Government, remember) were in charge of appointing judges. This meant that there was the potential for the Government of the day to have some influence over the shape of the judiciary, and therefore over how the law was handed down in this country. Now, though, with the Judicial Appointments Commission there is almost no way that the Government is able to directly influence the appointment of judges.
This is the bit of this blog where our good friend Iain Duncan Smith gets involved. In November the High Court declared his proposed changes to carer benefits were unlawful. This is a shining example of why separation of powers is absolutely necessary to making sure that the Government acts responsibly. Now, this is not me saying that if Andrew Smith had proposed this change in 2004 the High Court wouldn’t have taken up this case; that’s subjective history and nothing good comes of subjective history. The point here is that the reforms of 2005 made sure that the High Court would always take cases such as these up in the future.
All three branches of government should (ideally) keep checks on each other to make sure that each are performing as they should be. Once again it’s those across the Pond in the United States who do it best with their Supreme Court able to strike laws down if they are seen as ‘unconstitutional’. This process of checks and balances is make somewhat more difficult in Britain, however, given that the whole of one branch (the executive) is a member of another (the legislature) which causes a lack of scrutiny of the government by Parliament because who’d want to tell themselves they’re doing a lousy job of being a Government? Therefore, the executive holds significant influence over how laws are passed. In situations where there is a large majority in the Commons there is said to be ‘elective dictatorship’ where the Government can effectively pass whatever laws it likes.
Therefore, regardless of whatever political convictions you may have, the ruling of the High Court is one that should be celebrated. It should be celebrated because it shows that our Government is capable of controlling itself in a world where some people believe that their leaders can read their minds, and where some manipulate constitutions to stay in power. Although it may only seem a significant ruling to a few, it is evidence that the British Government is not able to wield absolute power, and for that we should all be glad that it has taken place at all.
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