4.10 The Judiciary

The third branch of government is the judiciary. The judges act in

the Queen’s name since their powers historically derive from the royal

functions of keeping order and doing justice. However, since the

seventeenth century, the judicial function has been separate from the

executive functions of the Crown and it is settled that the Crown

cannot establish new courts or interfere with judicial decision making.

Moreover the common law is generated by the judges themselves and

derives from the values of the community rather than from the will

of the government. On the other hand the appointment powers, pro-

cedures and administration of the judiciary is regulated by statute and

is subject to considerable executive influence. It is particularly impor-

tant for the judges to be independent and we shall deal with this in the

next chapter in relation to the separation of powers. In this section we

shall outline the law governing the status of the judiciary.

Judges of the Court of Appeal and the House of Lords are appointed

by the Queen on the advice of the prime minister. Other judges includ-

ing magistrates are appointed on the advice of the Lord Chancellor.

Tribunal members are appointed by ministers under particular statutes

but sometimes from a panel nominated by the Lord Chancellor.

Tribunals are supervised by an independent Council on Tribunals

which is concerned to protect their independence from the executive

(see Tribunals and Inquiries Act 1992).

84 General Principles of Constitutional and Administrative Law

Superior court judges, that is judges of the High Court and above,

cannot be dismissed by the Crown except following a resolution of both

Houses of Parliament (another constitutional safeguard in the hands of

the House of Lords), and then only for misconduct (Supreme Court

Act 1981, s. 11 (3); Appellate Jurisdiction Act 1876 s. 6). An alternative

interpretation of these provisions is that the Crown can dismiss a judge

for misbehaviour without an address from Parliament, but on an

address a judge can be dismissed by Parliament irrespective of mis-

behaviour. In exceptional circumstances judges can be removed by

the Lord Chancellor on medical grounds (Supreme Court Act 1981

s. 11 (8)). Superior court judges must retire at 70 (Judicial Pensions and

Retirement Act 1993). The salaries of superior court judges are also

safeguarded by statute.

The bulk of the judiciary (about 97%) are inferior court judges,

magistrates or tribunal members. These comprise (i) circuit judges who

hear criminal cases in the Crown court and civil cases in the county

court; (ii) district judges who hear minor civil matters in the county

court; (iii) magistrates both lay and stipendiary (full-time profes-

sionals); and (iv) part-time assistant recorders and recorders who hear

certain criminal cases. Inferior court judges are appointed on the advice

of the Lord Chancellor. They do not have full security of tenure but are

appointed under various statutes which make different provisions

for dismissal. Part-time judges are appointed for fixed periods, and

whether they are renewed is in the hands of the Lord Chancellor (see

Courts Act 1971 s. 21 (5)). Full-time judges, that is circuit judges and

stipendiary magistrates, hold office until the retirement age of 70. They

can be dismissed by the Lord Chancellor for incapacity or misbeha-

viour (Courts Act 1971 s. 17, s. 20). Lay magistrates hold office until

retirement but may be removed by the Lord Chancellor without any

particular grounds being specified (see Justices of the Peace Act 1997

ss. 5, 11, 16). Tribunal members are usually appointed for fixed terms

and within that can in most cases be dismissed only with the consent of

the Lord Chancellor (Tribunals And Inquiries Act 1992 s. 7).

4.11 The Privy Council

The Privy Council is the descendant of the medieval ‘inner council’

of trusted advisers to the King. Members of the Privy Council are

appointed by the Queen on the advice of the prime minister. There

are currently over 400 privy councillors including cabinet ministers,

senior judges and miscellaneous worthies who have attracted the

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The Structure of the UK Government: An Overview

approval of the prime minister. The cabinet is sometimes said to be

a committee of the Privy Council although there is no legal basis for

this assumption. Apart from its judicial function, the role of the Privy

Council is largely formal, or, in Bagehot’s terms, dignified. Its appro-

val is needed for certain important exercises of the royal prerogative

known as prerogative orders in council, including for example the

dissolution of Parliament and the regulation of the civil service, and

also for ‘statutory orders in council’ where Parliament gives power

to the executive to make laws in this form. Approval is usually given

by a small deputation of councillors attending the Queen. The Privy

Council also confers state recognition and legal personality by grant-

ing charters to bodies such as universities and professional, scientific

and cultural organisations. It can exercise some degree of supervision

over such bodies.

Committees of the Privy Council have certain important functions.

In particular the judicial committee is the final court of appeal from

those commonwealth countries who choose to retain its services, in

which capacity it is familiar with broad constitutional reasoning. The

judicial committee is made up from the Law Lords together with judges

of the country under whose laws the appeal is heard. Importantly the

Privy Council has jurisdiction over devolution issues including human

rights matters under the Scotland Act 1998, the Northern Ireland Act

1998 and the Government of Wales Act 1998. It also has jurisdiction in

respect of ecclesiastical courts, medical professional bodies, peerage

claims, election petitions and appeals from the Channel Islands and

the Isle of Man. Not being strictly a court, the judicial committee can

give advisory opinions to the government (Judicial Committee Act

1833 s. 4). It has been suggested that recent constitutional reforms,

notably devolution and the Human Rights Act 1998, call for the intro-

duction of a constitutional Supreme Court. This might replace, both

the Privy Council and the House of Lords the status of which as part of

the executive and legislature respectively is explicable only historically

and seems to serve no useful purpose.

4.12 Citizenship

Citizenship in the sense of a participating member of a political

community is an idea originating in ancient Greece and revived in

eighteenth-century Europe. This is, however, a sense unknown to

English law, the objects of which are in theory ‘subjects’ of the Crown

with rights and duties flowing from that relationship. Subjection to

the Crown arises out of either presence in the territory or a claim of

86 General Principles of Constitutional and Administrative Law

allegiance (below). Citizenship is one way of creating allegiance and

also confers certain specific rights.

Entitlement to British citizenship is governed mainly by the British

Nationality Act 1981. The subject of citizenship is complex due to the

collapse of the British Empire after the second World War and to

the many changes that have been made subsequently in order to control

immigration. Citizenship can be acquired by birth in the UK or the

Falkland Islands (British Nationality (Falkland Islands) Act 1983).

At least one parent must also be either a citizen or settled in the UK.

Citizenship can also be acquired by descent from a British citizen,

adoption, registration or naturalisation. Registration is a right avail-

able to persons born in the UK or who fulfil certain requirements of

residence or parentage. Naturalisation is a matter for the discretion

of the Secretary of State and is available to anyone, subject to con-

ditions of residence, language and good character. In certain cases

such as conviction of a serious offence naturalised citizens may be

deprived of citizenship.

Citizenship as such is legally important in the following respects:

1. Citizenship confers a right of abode in the UK under immigration

law (Immigration Act 1971 s. 1). Certain commonwealth citizens

who can trace historic connections with the UK also have a right of

abode (which cannot be exercised by polygamous wives (Immigra-

tion Act 1988 s. 2). European Union nationals also have certain

rights of residence in relation to working in the UK. Citizens of the

Republic of Ireland are exempt from immigration control but can

be expelled (Immigration Act 1971 s. 1 (3)).

2. British, Irish and commonwealth citizens, lawfully resident in the

UK may vote in parliamentary and local elections (Representation

of the People Act 2000). Non-citizens (other than Irish citizens)

cannot be members of either House of Parliament.

3. Honours and titles cannot be conferred upon non-citizens.

4. British citizens have a right to call upon the protection of the

Crown when abroad, although this is not enforceable in the courts.

The main consequence of the Crown’s duty to protect British

citizens abroad is that the Crown cannot require payment for such

protection unless the person concerned voluntarily exposes him or

herself to some special risk (see China Navigation Co. Ltd v. A-G

(1932); Mustasa v. A-G (1980)).

5. British citizens abroad are subject to special taxation laws.

British citizens cannot generally be removed (deportation) or

excluded from the UK, but there are two exceptions. Firstly a

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The Structure of the UK Government: An Overview

citizen can be extradited to stand trial or serve a sentence in another

country with which the UK has an extradition treaty. This requires a

court recommendation and a decision by the Home Secretary. The

offence concerned must also be an offence of substantially the same

kind in the UK (Extradition Act 1989 s. 2). In the case of common-

wealth countries no treaty is required (Fugitive Offenders Act

1967), and there are special arrangements with Ireland. Secondly,

under emergency legislation relating to Northern Ireland, the Home

Secretary can exclude or remove even a citizen from Great Britain

who has not been ‘ordinarily resident’ for at least three years (see

Chapter 19).

6. Non citizens, whom the Secretary of State suspects to be involved

in terrorism can in certain circumstances be detained without

charge (Anti-Terrorism, Crime and Disorder Act 2000).

There are other categories of British dependent territories’ citizen-

ship, but these do not confer substantial rights. Under the British

Nationality (Hong Kong) Act 1997 the Secretary of State was em-

powered to confer citizenship on certain residents of Hong Kong. This

was to enable the UK government to select persons it deemed suitable

to live in the UK after the return of Hong Kong to China in 1997. The

government has announced an intention to confer British citizenship

upon the citizens of the remaining dependent territories of the UK.

4.12.1 Allegiance

The legal basis of the relationships between the Crown and the indi-

vidual is that of monarch and subject. The linking concept is the feudal

bond of allegiance. This has two main practical consequences. Firstly,

the Crown probably cannot plead the defence of ‘Act of State’ against

a person who owes allegiance (see Chapter 12). Second, the offence of

treason is committed against the duty of allegiance.

All British citizens owe allegiance wherever they are in the world (see

R. v. Casement (1917)). Aliens resident in the UK also owe allegiance

(de Jager v. A-G (1907)). A person who holds a valid British passport

apparently owes allegiance even if he has never visited the UK and even

if the passport has been fraudulently obtained (see Joyce v. DPP

(1946)). Allegiance cannot be voluntarily surrendered (R. v. Lynch

(1903)), nor probably can the Crown remove the status since it binds

the Crown as well as the subject. Thus allegiance could be regarded as

an assertion of individualism compared with the communitarian con-

cept of citizenship, conferring as it does rights against the Crown.

88 General Principles of Constitutional and Administrative Law

4.13 Constitutional Reform

The Labour government, which was elected in 1997 and re-elected in

2001, embarked on a wide-ranging programme of miscellaneous

constitutional reforms. This programme remains incomplete but was

claimed to disperse power, to enhance individual rights and create

greater openness. However, the desire for reform may conflict with the

self-interest of the government in protecting its own power. We shall

discuss the individual reforms in their context but for convenience will

list the highlights here.

1. Political and legal power has been devolved to some extent away

from the centre towards regional bodies in Scotland, Wales and

Northern Ireland each of which now has an elected government,

albeit subordinate to the Westminster Parliament. It is an ‘asymetri-

cal’ devolution in that each region has a different extent and struc-

ture of devolved government. For example Wales has no power to

make legislation but depends on power being delegated by Parlia-

ment. England alone has no elected government of its own.

2. The European Convention on Human Rights has been incorpo-

rated into UK law by the Human Rights Act 1998 thereby allowing

the courts to pronounce upon the compatibility of UK law with

broader international ideas of human rights, although not to over-

ride Acts of Parliament.

3. The House of Lords, is currently undergoing reform to remove the

hereditary element although the details of this remain uncertain.

4. The question of electoral reform remains somewhat precariously

on the political agenda due to a widespread belief that the current

simple majority voting system produces governments that do not

represent a sufficiently wide range of political opinion. The electoral

system for the devolved governments, for the London Mayor and

for the European Parliament all depart from the simple majority

system so that UK voters now experience a variety of electoral

methods.

5. There have been reforms in relation to the financial affairs of politi-

cal parties in order to ensure accountability and openness (Political

Parties, Elections and Referendums Act 2000).

6. The Freedom of Information Act 2000 gives the public access to

official documents but is widely regarded as weak, with the govern-

ment retaining control over several categories of information. It is

unlikely to be implemented before 2005.

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7. Local government has been reformed by requiring local authorities

to put in place structures which separate the executive from the

elected council with a view to increasing accountability. In the case

of London there is now an elected mayor with a wide range of

policy-making functions but limited executive powers.

8. It is proposed to strengthen the independence of the civil service

by statute.

Summary

4.1 Dicey regarded the primary characteristics of the UK constitution as (i) the rule

of law; (ii) parliamentary supremacy; (iii) the ultimate political sovereignty of

the electorate. According to the traditional model of the constitution there is a

democratic chain of accountability that makes the Crown subject to elected

ministers, and ministers subject to the people through Parliament. In practice,

however, the executive is usually able to dominate Parliament and ministerial

responsibility may obscure rather than focus responsibility. There is con-

siderable reliance on extra-parliamentary sources of influence in particular

by means of the prime minister’s power of patronage.