A Loss of Innocence?: Judicial Independence and the Separation of Powers

Abstract

The concepts of judicial independence and the separation of powers are used more as terms of political rhetoric than legal concepts in the British constitution. Responsible government significantly merges the executive and the legislative while parliamentary sovereignty has meant that judicial independence has had a peculiar British meaning, rarely unpacked. In practice, in England, (and presumably in the other UK jurisdictions), individual judges are accorded a high degree of independence, while there is no effective independence of the judiciary collectively as a branch of government. This article then asks what impact current constitutional changes will have on this state of affairs. Adherence to the EU, the growth of judicial review and other factors have already had an important impact; devolution, the Human Rights Act and the reform of the House of Lords may have impacts that will be different in both quality and degree. Coupled with other political changes the end result may well be a more effective separation of powers and more real independence for the judges as a branch of government; but that in turn may call for more open and meaningful democratic control over the appointment of judges.