CONSTITUTIONAL AND POLITICAL REFORM

Compared to many other democracies, institutional and procedural reform in the British political system has been very slow, gradual and piecemeal. However, there has been a growing movement for more reform, starting with the actual running of the House of Commons:

• Since the election of (Conservative MP) John Bercow as Speaker of the House of Commons, there have been many more occasions of the use of the Urgent Question (UQ). This is a device which allows any Member of Parliament on any sitting day to petition the Speaker to demand that a Government Department supplies a Minister to make a statement on some issue or matter that has arisen very suddenly.
• Eight weeks before the May 2010 General Election, the House of Commons embraced the election of the Deputy Speakers, the whole House election of Select Committee Chairs, the whole party caucus election of Select Committee members, and the creation of a House Backbench Business Committee.
• In November 2013, the Speaker of the House of Commons John Bercow announced the formation of a novel type of inquiry, a Speaker’s Commission, to examine the whole issie of Digital Democracy. This exercise started in early 2014 and reported in early 2015.

The appetite for constitutional change became much stronger in the aftermath of the May 2009 scandal over the expenses of Members of Parliament. Then the formation in May 2010 of a Conservative/Liberal Democrat Coalition Government opened up new possibilities for change with a number of specific measures set out in the agreement between the parties establishing the new government. However, actual progress has been limited.

The changes on the agenda of the previous Coalition Government were as follows:

• Fixed term parliaments - In the past, elections to the House of Commons had to be held within five years of the previous General Election but the Prime Minister had complete discretion over the actual date which was often the subject of considerable speculation and frequently a year or more before an election was legally necessary. The coalition parties agreed to the establishment of five year fixed-term parliaments and the necessary legislation has now been enacted. Therefore, subject to at an earlier time either a vote of no confidence in the Government or a two-thirds majority vote, each General Election will now be held on the first Thursday of May five years after the previous election.
• A new electoral system for the House of Commons - Britain is unusual in Europe in having an electoral system which is 'first-past-the-post' (FPTP) and there are advocates for a system of proportional representation (PR), versions of which are already used for elections to the Scottish Parliament, the Welsh Assembly and the Northern Ireland Assembly and for British elections to the European Parliament. As a vital component of the coalition agreement, legislation was carried to enable a referendum to be held on an electoral system called the alternative vote (AV) which enables the voter to number candidates in order of preference and requires a winning candidate to secure more than 50% of the votes which, if not achieved on the first count, is achieved through successive withdrawal of the lowest-polling candidate and redistribution of that candidate's preferences. The referendum - only the second UK-wide referendum in its history - was held on 5 May 2011, but the current electoral system was supported by a margin of more than two to one (I voted for a move to AV).
• Fewer and more equal sized constituencies - Currently the House of Commons has 650 seats; the Coalition Government intended to cut this to 600. Currently the number of electors in each Parliamentary constituency varies quite considerably; the Coalition Government legislated that no constituency should be more than 5% either larger or smaller than a national average of around 76,000 electors (which could eliminate some 40 Labour-held seats). The Government included these measures in the Referendum Bill on electoral reform and it was intended that the new constituencies would come into effect at the General Election in 2015. However, although the Bill is now on the statute book, the new constituencies did not become operative at the General Election following a Commons vote of 334 to 292 against early implementation when the Liberal Democrats joined with Labour to block implementation in retaliation for Conservative MPs failing to support the reform of the House of Lords strongly favoured by the Lib Dems.
• Election of the House of Lords - At present, no member of the upper house is actually elected; most are appointed on the nomination of party leaders with a small number remaining from the originally much larger group of hereditary peers. The Queen's Speech of May 2012 announced that there would be a Bill on Lords reform in that session of Parliament. The latest proposal for reform comes from a Joint Committee of the two houses which recommended a 450-seat chamber with peers elected for 15 years in elections to be held every five years. Of these, 80% would be elected by a form of proportional representation with 20% appointed by an independent body. In fact, neither the Commons (especially the Conservative Party) nor the Lords is keen on reform for very different reasons (MPs do not want the Lords to gain more legitimacy and nominated peers do not want to be replaced by elected representatives). In the summer of 2012, the Prime Minister announced that he could not deliver Conservative support for a reform measure which was therefore withdrawn to the intense anger of the Liberal Democrats who very much support reform.
• More power to backbench Members of Parliament - In the British political system, the party in Government has considerably more power in the legislature than the Opposition parties and in all the political parties the whips have considerable power over backbenchers. Ordinary MPs could be given more influence by measures such as more independent and stronger all-party Select Committees, more unwhipped votes (especially during the Committee Stage of Bills), more support for Private Members' Bills (those initiated by backbenchers rather than Ministers), more power to scrutinise Government spending, and a new power to subject ministers to confirmation hearings.
• The power to force a by-election - Currently a by-election occurs only when an MP dies or resigns or is sentenced to more than one year in prison. In the last Parliament, the Government put forward legislation to make the recall of an errant MP easier. The new Act requires that, if an MP is convicted of an offence and sentenced to a custodial sentence of 12 months or less or if the Commons orders the MP's suspension for at least 28 sitting days (or 28 calendar days), then the MP's constituents will have the opportunity to sign a recall petition calling for a by-election. It will require at least 10% of constituents to sign the petition for a by-election to be held.
• More devolution nationally and locally - The Scottish Parliament, the Welsh Assembly and the Northern Ireland Assembly all have devolved powers and all of them want more, while many local authorities feel that, over past decades, their powers have been eroded by the national parliament. Some believe that a revitalisation of the British political system requires more devolution of power. The main political parties in the UK Parliament had already agreed to the implementation of the Calman Commission proposals on further Scottish devolution and the offer of a referendum on further Welsh devolution. However, in the final week of the Scottish independence referendum campaign, the three major parties in the UK Parliament agreed that, if the Scots voted 'no' (as they did), there would be an early transfer of substantial extra powers to the Scottish Parliament. This is now the subject of fierce political debate because of the implications for the other nations, regions and cities in the UK and for the UK Parliament itself.
• Use of e-petitions - Citizens are encouraged to use the Government web site to create electronic petitions to promote specific political reforms. It might be that the most popular petition will be drafted as a Bill and presented to Parliament, while those petitions that reach a certain level of support - probably 100,000 signatures - will be guaranteed a debate in the House of Commons.
• Funding and lobbying - All political parties find it difficult to raise the funding necessary to promote their messages and run their election campaigns and, in practice, the Labour Party receives much of its funding from a small number of trade unions and the Conservative Party is backed mainly by large companies. It has been argued that democracy would be better served and parties could be more independent if there was public funding of political parties with the actual level of funding depending of some combination of candidates and votes. The parties have agreed to pursue a detailed agreement on limiting donations and reforming party funding in order to remove 'big money' from politics. Also the parties intend to tackle lobbying through introducing a statutory register of lobbyists.

Candidates for further change would include the following proposals:

• A wider franchise - At present, every citizen over 18 can vote but it has been suggested that the voting age should be lowered to 16. In the Coalition Government, the Liberal Democrats supported such an extension to the franchise but the Conservatives opposed it. Meanwhile the Scottish Nationalist Government allowed 16 and 17 year olds to vote in the 2014 referendum on Scottish independence.
• A wider process for selecting Parliamentary candidates - Today candidates are selected by meetings of members of the political party that the candidate will represent in a future election, but it has been proposed that the process could be opened up to anyone in the relevant constituency who has declared themselves a supporter of that party, a process something like the primaries in the United States.
• A more modern culture for the Commons - Many of the traditions and much of the language of the Commons date back centuries and reformers argue that it is time for change to make the proceedings more accessible and acceptable to the public and electorate. The sort of changes mooted are no ceremonial dress for Commons staff, reform of terms such as "My right honourable friend", and a less gladiatorial version of Prime Minister's Questions.
• Limits on the Royal Prerogative - At the moment, the Prime Minister alone can exercise powers which once used to belong to the monarch, such as the right to apppoint certain judges and bishops, the signing of international treaties, and the declaring of war, but this could be changed so that Parliament has to decide such matters.
• A domestic Bill of Rights - The UK has a Bill of Rights but it is the European Convention on Human Rights which, since 2000, has been part of the domestic law and therefore enforcable in national courts as well as the European Court. Some people believe that Britain should draft its own specific Bill of Rights. A Bill of Rights Commission, chaired by Sir Leigh Lewis, met for 18 months to consider this matter and reported in December 2012 when it was utterly unable to reach any sort of consensus. However, the current Conservative Government would like to remove the European Convention from the UK's domestic law and substitute it with a British Bill of Rights.
• A written constitution - For historical reasons, the UK is one of only three countries in the world not to have a written constitution (the others are New Zealand and Israel). The most radical proposal for constitutional change - supported especially by the Liberal Democrat Party - is that the country should now have a formal written constitution, presumably following some sort of constitutional convention and possibly a referendum.

So, at the time of the General Election of May 2010, the scene seemed set for more change than for many decades but, in reality, most of the measures discussed at the time of the Coalition Agreement floundered. Nevertheless, as a consequence of the 2014 referendum on Scottish independence, there is now a more fundamental debate about the British constitution than at any other time in living memory.

Courts

Modern British courts are divided into those trying criminal cases and those trying civil cases; a second distinction is made between inferior courts, or courts of first instance, and superior courts, or courts of appeal. In the U.S. each state has its own system of courts, usually consisting of a superior (appellate) court, trial courts of general jurisdiction, and specialized courts (e.g., probate courts).

The U.S. also has a system of federal courts, established to adjudicate distinctively national questions and cases not appropriately tried in state courts. At the apex of the national system is the Supreme Court of the United States. The secondary level consists of the United States Courts of Appeals. United States District Courts form the tertiary level. Crimes committed by military figures may be tried in a court-martial. In the past, ecclesiastical courts had broad jurisdiction.

This article deals with the operations of the judicial branch of government. It explores some of the fundamental relationships of this branch with legislative and executive branches and analyzes the functions, structure and organization, and key personnel of courts, the judges. It also compares the systems of the two predominant legal traditions of the contemporary world: common law, represented by England, the United States, Canada, Australia, and other countries deriving their legal systems from the English model; and civil law, as represented by countries of western Europe and Latin America and certain Asian and African countries that have modeled their legal systems on western European patterns.

Judicial legitimacy

Legal scholars are fond of quoting the maxim that courts have neither the “power of the purse nor of the sword,” meaning that they, unlike other institutions of government, rarely have the power to raise and spend money and do not command the institutions of coercion (the police and the military). Without force or monetary inducements, courts are weak institutions, because they are denied the most efficacious means of ensuring that their decisions are complied with and enforced.

The lack of formal institutional powers has led some observers to conclude that courts are the least-effective agents of government. However, such arguments ignore what is surely the most significant powers of courts—their institutional legitimacy. An institution is legitimate when it is perceived as having the right or the authority to make decisions and when its decisions are viewed as worthy of respect or obedience. Judicial legitimacy derives from the belief that judges are impartial and that their decisions are grounded in law, not ideology and politics. Often in sharp contrast to other political institutions (such as legislatures), courts are respected—indeed often revered—because their decisions are viewed as being principled rather than motivated by self-interest or partisanship. To the extent that courts are perceived as legitimate by their constituents, their decisions—even their unpopular ones—are respected, acquiesced to, and accepted.

Courts are not naturally and universally endowed with legitimacy; rather, a sense of legitimacy is accrued and built over time. Throughout the world, the decisions of courts have often been ignored or violently opposed. In some countries, unpopular rulings have resulted in riots (Bulgaria); court buildings have been attacked and burned (Pakistan); judges have been intimidated and removed from office (Zimbabwe), assassinated (Uganda), or reassigned to courts in the hinterland (Japan); and, in the most extreme cases, judicial institutions have been suspended (United States).

Functions of courts

Keeping the peace

The primary function of any court system—to help keep domestic peace—is so obvious that it is rarely considered or mentioned. If there were no institution that was accepted by the citizens of a society as an impartial and authoritative judge of whether a person had committed a crime and, if so, what type of punishment should be meted out, vigilantes offended by the person's conduct might well take the law into their own hands and proceed to punish the alleged miscreant according to their uncontrolled discretion. If no agency were empowered to decide private disputes impartially and authoritatively, people would have to settle their disputes by themselves, with power rather than legitimate authority likely being the basis of such decisions. Such a system might easily degenerate into anarchy. Not even a primitive society could survive under such conditions. Thus, in this most basic sense, courts constitute an essential element of society's machinery for keeping peace.

Deciding disputes

In the course of helping to keep the peace, courts are called upon to decide controversies.

 If, in a criminal case, the defendant (one charged with a crime) denies committing the acts charged against him, the court must choose between his version of the facts and that presented by the prosecution. If the defendant asserts that his actions did not constitute criminal behavior, the court (often aided by a jury) must decide whether his view of the law and facts or the prosecution's is correct.

In a civil case, if the defendant disputes the plaintiff's account of what happened between them—for example, whether they entered into a certain contract or agreement—or if he disputes the plaintiff's view of the legal significance of whatever occurred—for example, whether the agreement was legally binding—the court again must choose between the contentions of the parties. The issues presented to, and decided by, the court may be either factual, legal, or both.

Courts do not, however, spend all their time resolving disputes between opposing parties. Many cases brought before the courts are not contested (e.g., a “no-fault” divorce or a routine debt-collection case). As no dispute exists over the facts or the law, the court's role in such cases is more administrative than adjudicatory. Moreover, the mere existence of a court may render the frequent exercise of its powers unnecessary. The fact that courts operate by known rules and with reasonably predictable results leads many of those who might otherwise engage in legal action to reach a compromise, because people are typically unwilling to incur the expense of going to court if they believe that there is a good chance that they will lose.

Most people arrested and charged with a crime plead guilty. If they do so with full understanding and without any coercion, the judge generally accepts their admission of guilt. The sole question for the court is to decide whether the defendant should go to jail, pay a fine, pay restitution to the victim, or be subjected to other corrective treatment (the judgment may entail more than one of these punishments). In civil-law countries, some judicial inquiry into the question of guilt or innocence is typically required even after a confession, but the inquiry is generally brief and tends to be perfunctory. The main problem to be resolved is the sentence that should be imposed.

The vast majority of civil cases are also uncontested or, at least, are settled prior to trial. In some instances, serious negotiations begin only after a lawsuit has been filed. Many suits are settled by the parties themselves, without the intervention of the court. Because courts are usually under strong caseload pressures, they encourage such settlements. Consequently, in many Western systems, only a small fraction of civil cases are actually tried. Indeed, in many countries a notable trend of the late 20th and early 21st century has been the decreased reliance upon trials to settle disputes.

The decline in court usage reflects several legal and social trends, most notably the increased desire of the parties to seek immediate relief and the increased options in the systems available to do just that. In the United States, for example, most divorce cases are uncontested, both parties usually being eager to terminate the marriage and often agreeing on related questions concerning support and the custody of children. All the court does in such cases is review what the parties have agreed upon and give the agreement official approval and the legitimacy of law. In other instances, disputes are settled through various methods of alternative dispute resolution, such as arbitration, in which the parties agree that the decision of the arbitration (or arbitration panel or tribunal) will carry the full, binding force of law. Arbitration is commonly used in commercial and labor disputes.

Many other uncontested matters come before courts, such as the adoption of children, the distribution of assets in trusts and estates, and the establishment of corporations. Occasionally questions of law or fact arise that have to be decided by the court, but normally all that is required is judicial supervision and approval. Thus, much of what courts do is administrative in nature.

Judicial lawmaking

All courts apply preexisting rules (statutes) formulated by legislative bodies, though the procedures vary greatly between common-law and civil-law countries. In applying these rules, however, courts must also interpret them, typically transforming the rules from generalities to specifics and sometimes filling gaps to cover situations never addressed by lawmakers when the legislation was first drafted. As courts decide disputes in individual cases, they create an important by-product beyond peaceful settlements—that is, they develop rules for deciding future cases. The judicial decisions embodying these interpretations then become controlling for future cases, sometimes to the extent that they virtually supplant the legislative enactments themselves. In common-law systems, such decisions are called precedents, and they are rules and policies with just as much authority as a law passed by a legislature. Thus, law is made not only by legislatures but also by the courts.

The common-law system of creating precedents is sometimes called “stare decisis”(literally, “to stand by decided matters”). Judges are generally expected to follow earlier decisions, not only to save themselves the effort of working out fresh solutions for the same problems each time they occur but also, and primarily, because the goal of the law is to render uniform and predictable justice. Fairness demands that if one individual is dealt with in a certain way today, then another individual engaging in substantially identical conduct under substantially identical conditions tomorrow or a month or year hence should be dealt with in the same way. Reduced to its essentials, precedent simply involves treating similar cases similarly. This system of stare decisis is sometimes referred to as “judge-made law,” as the law (the precedent) is created by the judge, not by a legislature.

In civil-law countries, all judicial decisions are, in theory, based upon legislative enactments, and the doctrine of judicial precedent does not apply.

14) Constitutional (constitutional law) decisions

In some countries, courts not only interpret legislation but also determine its validity (constitutionality), and in so doing they sometimes nullify statutes passed by legislatures. A court empowered with such authority may declare that a piece of legislation is null and voidbecause it is incompatible with constitutional principles (e.g., some restrictions on the right to have an abortion in the United States have been found by the U.S. Supreme Court (Supreme Court of the United States) to be incompatible with the right to personal privacy—itself a contested constitutional principle that was developed by the court beginning only in the 1960s). This happens only in countries that have written constitutions and that have developed a doctrine of “judicial supremacy” (in contrast to “parliamentary supremacy,” which is generally found in countries following the model of the United Kingdom). When scholars speak of “limited government,” they mean specifically that the policy options available to governments are constrained by constitutional principles that are enforced by an independent judiciary. The prime example is the United States, and the classic statement of the doctrine is the Supreme Court's decision in Madison (Marbury v. Madison) (1803), in which Chief Justice John Marshall (Marshall, John) said:

“The powers of the legislature are defined and limited; and [so] that those limits may not be mistaken, or forgotten, the Constitution is written.. It is a proposition too plain to be contested, that the Constitution controls any legislative act repugnant to it.…It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.”

Armed with this powerful precedent from this very early date in the development of the U.S. legal system, the Supreme Court of the United States has held many statutes—federal as well as state—unconstitutional and has also invalidated executive actions that it believed violated the Constitution.

Perhaps even more surprising is the fact that all lower courts in the United States also possess and exercise the same powers as the Supreme Court. Whenever a question arises in any U.S. court at any level as to the constitutionality of a statute or executive action, that court is obligated to determine its validity in the course of deciding the case before it. Indeed, the case may have been brought for the sole and express purpose of testing the constitutionality of the statute (e.g., a law requiring racial segregation (segregation, racial) or restricting freedom of speech), or it may be an ordinary civil or criminal case in which a constitutional question incidental to the main purpose of the proceeding is raised (e.g., the legality of a search and seizure by the authorities). Every judge in the United States is legally empowered to engage in constitutional interpretation. When a lower court decides a constitutional question, however, its decision is subject to appellate review, sometimes at more than one level. When a state statute is challenged as violating the state constitution, the final authority is the supreme court of that state; when a federal or state statute or a state constitutional provision is challenged as violating the Constitution of the United States, the ultimate arbiter is the U.S. Supreme Court.

In a few U.S. states and in many countries, questions as to the constitutional validity of a statute may be referred in abstract form to a high court by the chief executive or the legislature for an advisory opinion. In most systems, however, this is unusual and, in any event, supplementary to the normal procedure of raising and deciding constitutional questions. The normal pattern is for a constitutional question to be raised at the trial-court level in the context of a genuine controversy and decided finally on appellate review of the trial-court decision.

The U.S. pattern of constitutional adjudication is not followed in all countries that have written constitutions. In some countries (e.g., Germany), there is a special court at the highest level of government that handles only constitutional questions and to which all such questions are referred as soon as they arise and before any concrete controversy occurs. A constitutional question may be referred to the special court in abstract form for a declaratory opinion by a procedure similar to that prevailing in the minority of U.S. states that allow advisory opinions. In France, members of the parliament may demand (and increasingly have demanded) that the constitutionality of legislation be certified by the Constitutional Council prior to its becoming law.

In other countries, written constitutions may be in effect but not accompanied by any conception that their authoritative interpretation is a judicial function. Legislative and executive bodies, rather than courts, act as the guardians and interpreters of the constitution, being guided by their provisions but not bound by them in any realistic sense. Modernization in the developing countries (as in Latin America, Asia, and sub-Saharan Africa) and the transformations from authoritarian to democratic governance (e.g., in Greece, Portugal, and Spain in the 1970s and '80s) have meant that there are fewer instances of wholly impotent courts. Still, in some countries, the courts remain captive to political elites or open to manipulation by the government, or the courts' authority to exercise the judicial review to which they are constitutionally entitled remains tenuous. In 1993, for example, the Russian constitutional court was dissolved by Pres. Boris Yeltsin and replaced with a system of appointments that ensured greater presidential control.

Finally, some countries, such as the United Kingdom, have no formal written constitution. In such countries, parliamentary supremacy clearly prevails, though European law (i.e., the law of the European Union [EU]) now supersedes parliamentary supremacy in all EU countries, including the United Kingdom. The courts have no power to invalidate statutes, though they can and do interpret them, which is a very important judicial power.

Procedural (procedural law) rule making

Distinct from the type of lawmaking just described is a more conscious and explicit type of judicial legislation that is somewhat less controversial. It is directed toward the rules of procedure by which the courts operate; in the United States and elsewhere, the rules of procedure are generally subsumed under the concept known as due process (known outside the United States as fair procedure). This is a technical area in which expert knowledge of the type possessed by judges and lawyers is needed, in which constant attention to detail is required, and in which major problems of social, economic, or political policy are seldom explicitly encountered. Some legislative bodies, able or willing to devote only sporadic attention to the day-to-day problems of the management of litigation, have delegated the power to regulate procedure to the courts themselves. This is not ad hoc judicial lawmaking as a by-product of deciding cases but openly acknowledged promulgation of general rules for the future, in legislative form, by courts rather than legislatures.

An outstanding example of judicial rule making is found in the United States, where Congress has delegated to the Supreme Court (Supreme Court of the United States) broad power to formulate rules of civil, criminal, and appellate procedure for the federal courts. The Supreme Court also exercises the power to amend the rules from time to time as experience indicates that changes are desirable. Although Congress reserves the power to veto the rules promulgated by the Supreme Court, it has felt no need to do so. These rules of procedure often reflect highly significant biases toward one interest or another; examples include rules regarding the ways in which individual citizens can be aggregated into a “class” so that they can pursue their grievances collectively in the federal court system.

Other legislative bodies, including those of some U.S. states and most of the countries of continental Europe, have been unwilling to place so much trust in the courts and have retained for themselves the power to regulate procedure. The results have been varied. Courts sometimes become so immersed in day-to-day decision making that they fail to pay adequate attention to the proper functioning of the judicial machinery and perpetuate rules that are unduly rigid, unrealistic, and unsuited to the needs of litigants, which was the case in England and the American colonies during the 18th and first part of the 19th century. When such a situation exists, reform through legislative action is necessary. Apart from the occasional necessity of major sweeping changes, however, experience in common-law countries indicates that procedural rule making is better vested in the courts than in legislative bodies.

Review of administrative (administrative law) decisions

Administrative agencies of various kinds (e.g., the Food and Drug Administration in the United States) exist alongside the courts in nearly every country. Some do substantially the same kind of work as is done by courts and in substantially the same manner; others, however, have quite different functions (e.g., the issuing of licenses and the payment of social-welfare benefits).

The relationship between such agencies and regular courts differs markedly between common-law and civil-law countries. In common-law countries the actions of administrative agencies are subject to review in the ordinary courts. If the agency decides controversies in substantially the same manner as a court but in a different and more limited area, judicial control takes much the same form of appellate review as is provided for the decisions of lower courts.

In many civil-law countries, the ordinary courts have no control over administrative agencies. Their decisions are reviewed by a special tribunal that is engaged exclusively in that work and that has nothing to do with cases of the type that come into the courts. Its function is solely appellate and is limited to the specialized areas entrusted to the administrative agencies. The prototype of this type of tribunal is France's Conseil d'État, which decides and advises on issues put to it by the president, cabinet, or parliament. Such tribunals also have been established in other countries, including Belgium, Egypt, Greece, Spain, and Turkey.