Most countries have a written constitution, a single document which defines how and by whom their state is governed. As every school child knows, Britain is different; spared a bloody revolution or invasion, our nation has never had cause to draft such a text of founding principles.
The United Kingdom, like few other countries, has an uncodified constitution – a collage of laws, conventions and precedents which has evolved incrementally over hundreds of years. Flexibly and adaptably, underpinned by stable institutions, its longevity is the proof that it works.
Changes in recent decades, however, have raised questions about where power now lies - most notably the incorporation of European law into our legal system. The lamentable 1998 Human Rights Act created a wholly new legal framework, giving judges scope to redefine their role and so take on greater authority, with consequences as unpalatable as they are unprecedented.
At the core of our organic unwritten constitution is the concept of the separation of powers which delineates the particular role of legislators, administrators and the judiciary. This separation makes us very different from the Americans or continental Europeans where judges and bureaucrats are politically appointed. Contrastingly, our system guarantees their independence.
Laws are made by the people’s representatives in Parliament, with the judiciary enforcing and interpreting those Acts of Parliament as they stand, not revisiting their intent. Now, however, judges risk becoming lawmakers by constitutional entrenchment. This is the real threat to the separation of powers and consequently to judicial independence.
Consider the recent High Court ruling on triggering our departure from the EU. Those who brought the legal challenge did so not because of genuine concern about procedure, but because they want to thwart Brexit by the back door. Judges ruling that the Prime Minister alone should not begin the exit process will not stop the Government delivering the democratic will of the people, but it’s clear that the changing role of the judiciary is deeply troubling. The case should never have gone to court, and judges shouldn’t presume to tell Parliament when and on what it must vote.
Then there’s the recent shocking case of a 14 year old girl who, having tragically died of cancer, won the right to be cryogenically frozen in the hope she may be awoken once a cure is found. This bizarre episode opens up countless ethical and moral issues – matters which should be debated and decided by elected representatives, not by High Court judges.
To question the activist role of some judges is not to query their independence – rather it is to emphasise that Parliament is sovereign, and that the power to make laws must reside in the hands of the people through those they choose to speak for them.