Judicial Independence and Parliament

The Judicial Independence Project recently held its third seminar for professionals (judges, politicians, civil servants and journalists, amongst others) on the topic of ‘Judicial Independence and Accountability: The Role of Parliament’.

The discussion focused on the relationship between Parliament and the courts and reference was made to the idea of ‘comity’ as the basis for this relationship: mutual respect combined with distance. Some worried, however, that comity might freeze relations so that there is little communication between both sides. It was noted that there is no constitutional bar to political criticism of the judiciary. It was generally agreed that criticism (even unfair criticism) does not affect the independence of judges.

Several speakers emphasised also that the high profile breaches of super-injunctions and anonymised injunctions by parliamentarians in 2011 were not breaches of the sub judice rule but rather breaches of court orders which are not captured by that rule. Injunctions of this kind raise different issues to sub judice and a new rule may be required.

The seminar was run under Chatham House Rule, but we have prepared a short anonymised note of the discussion.

Read the seminar note

Events you might be interested in…


Inside Story: How the Coalition WorksProf Robert Hazell
Prof Robert Hazell & Dr Ben Yong

Date: Thursday 24 November, 5.00pm
Venue: Room 106, Roberts Building, Torrington Place, WC1E 7JE

Robert Hazell and Ben Yong have been conducting a 12 month research project,funded by the Nuffield Foundation, into how the coalition government works.

They have interviewed over 140 ministers, officials, advisers and parliamentarians. They are now writing up their findings in a book, to be published in the New Year. In this talk they will present their main findings; discuss the difficulties of this kind of qualitative research; and ask why political science has so little to say about how coalitions work in practice.

Further information: http://www.ucl.ac.uk/spp/seminars

Jack StrawBritain & Europe
Prof Jack Straw MP

Date: Tuesday 6 December, 6.00pm
Venue: Anatomy JZ Young Lecture Theatre, UCL

Jack Straw is Visiting Professor, UCL Political Science and MP for Blackburn. He has held several senior Cabinet positions, including Home Secretary, Foreign Secretary and Justice Secretary

His inaugural lecture will address the theme of ‘Britain and Europe’. Sir Stephen Wall will act as discussant and Prof Robert Hazell will chair.

More information and online booking: https://www.ucl.ac.uk/public-policy/events/Jack_Straw/index

Sir Stephen Sedley at Constitutional Law Group

The next UK Constitutional Law Group event will be on Wednesday  2nd November 2011 at 6pm in the Keeton Room, Bentham House, UCL Faculty of Laws, Endsleigh Gardens,  London WC1H 0EG.

Sir Stephen Sedley , President of the UK CLG, will speak on, “Monsieur Jourdain’s epiphany: doing theory without knowing it”. The talk is to mark the publication of his new book  Ashes and Sparks (CUP 2011).  There will be a drinks reception after the discussion.

Further information and booking:

Commission on British Bill of Rights Debate

On 26 October, UCL’s Institute of Human Rights hosted a lively evening on the much-debated British Bill of Rights. The discussion included the current push by Attorney General, Dominic Grieve, to use the principle of subsidiarity to get more leeway for domestic interpretations of European Convention rights. Dr. Saladin Meckled-Garcia from the Institute described this as an unfortunate attempt to shift the meaning of subsidiarity from “primary responsibility for implementation to primary responsibility for interpretation” of convention rights. Colm O’Cinneide (UCL Laws) persuasively argued that expanding the margin of appreciation for Britain would open the floodgates for countries like Russia to limit human rights claims. Aileen Kavanagh (Oxford), also on the panel, warned that there was no legally expedient way to distance the UK from Strasbourg jurisprudence and described the Human Rights Act as Britain’s Bill of Rights. The discussion was provocatively reported in the Guardian the next day.* *Members from the Government’s Commission on a Bill of Rights attended the UCL Institute for Human Rights debate on 26 October, to hear speakers dissect a number of proposals.

For more information:

Royal Succession rules: view from the Realms

HM Queen Elizabeth IIPost by Anne Twomey, Associate Professor at the University of Sydney Law School

Changes to the rules of succession will be one of the items discussed at the Commonwealth Heads of Government meeting in Perth on 28-30 October.  These changes include removing the priority given to males over females, and removing the disqualification of people from the line of succession if they marry a Catholic.

Not all Commonwealth countries have to agree to such changes, because most are republics.  It is only the fifteen other ‘Realms’, of which Her Majesty is Sovereign, that are potentially affected.  They range in size from Canada and Australia at one extreme to St Kitts and Nevis and Tuvalu at the other.

Westminster no longer has any power to legislate for these countries.  Any changes the UK makes to the laws of succession will not apply to those Realms, unless the local law of the Realm picks up and applies the British law, or simply identifies its Sovereign by reference to whoever is Sovereign of the United Kingdom.  In Tuvalu, for example, Her Majesty is Queen at the request of the people of Tuvalu.  The office of Sovereign extends to her heirs and successors, according to the law of Tuvalu, but in the absence of such a law, the British law of succession applies.   In contrast, in New Zealand, the Act of Settlement has become part of New Zealand law and can only be changed in its application to New Zealand by the New Zealand Parliament.  So unless the New Zealand Parliament changes its law of succession, the old law will continue to apply, regardless of any change made in the United Kingdom.

Matters become more awkward in the federations.  In Australia, whether the federal Parliament has the power to enact a law changing the rules of succession, or whether it requires the cooperation of all the State Parliaments remains debateable.  In Canada, the matter is even more uncertain.  A constitutional amendment in relation to the office of the Queen requires the passage of resolutions by both Houses of the federal Parliament and all the provincial legislatures.  It is unclear whether such a law would amount to a constitutional amendment.  However, if the consent of all the provinces is required, difficulties might arise in getting the consent of Quebec.

The United Kingdom is perfectly entitled to change its laws concerning succession to its throne at any time without needing the consent of any other country.  The ‘convention’ set out in the preamble to the Statute of Westminster 1931, which required the parliamentary consent of certain Dominions, is out-dated and arguably no longer applicable.  However, if the British Government places importance on maintaining a single law of succession across all of the Realms, then this may be more difficult to achieve, given the constitutional difficulties in some of the Realms.  The discussion at CHOGM will be an important first step in this process.

More information: