In August the Lord Chief Justice of England and Wales, the appropriately named Sir Igor Judge (pictured left), gave a speech to the 2010 Bench & Bar Conference in Colorado. When British judges speak in the United States, it is almost obligatory that they flag up the shared constitutional history of both nations. What makes Sir Igor Judge’s speech different is that, having dispensed with a lengthy discussion of the role of Middle Temple Barristers in the founding of the United States, he develops an interesting thesis regarding the constitutional role of the judiciary in both countries.
The judge, for Lord Judge, is a figure aloof from the political fray:
I hate the word “ideology” to be applied to any judge. Surely every judge applies the law as he or she conscientiously analyses it.
But from this jump-off point on the nature of the judicial role, his discussion focuses upon the major constitutional difference between the US and UK Supreme Courts, with the former exercising the power of legislative review and the latter not. He begins by addressing the vexed question of judicial appointments. In the UK, the appointments process is managed by an independent committee (the Judicial Appointments Commission) and it is plain to be seen that Lord Judge CJ is quite satisfied with these arrangements (notwithstanding the drawn out and controversial appointment process that preceded the elevation of Sir John Dyson to the Supreme Court):
I like to think that the selection of our judges and in particular the senior judiciary is now as immune from the political process as it is possible to be in a democratic society.
He contrasts this process with the politicised appointments process whereby Supreme Court nominees must be approved by the US Senate:
Nevertheless if the process of appointment to your Supreme Court were the process in England and Wales I should be immensely troubled, and for this reason. The more we allow the appointment of judges to become part of the political process, the quicker the judiciary will become subsumed in it. And what price then, judicial independence?
But his reasoning as to why the position of both countries’ judiciaries is so radically different actually dates to the foundation of their modern constitutional arrangements. It is worth quoting his central argument at length:
My thesis is that in England we granted ultimate sovereignty to Parliament because it was through Parliament that we sought to curb the divine right of kings, first in consequence of the ancient arrangements which prohibited the imposition of taxation without parliamentary consent … and then, as the claim for privileges and protection grew when Parliament refused to endorse the King’s request for additional taxation without some concession from him, and ultimately by going to war. In other words, in our arrangements the potential for tyranny was gradually removed by insisting on the parliamentary legislative process, and victory in battle. In your situation, many years later … Parliament in London appeared to be unwilling or unable to see that the position of the Americans was entirely consistent with established constitutional principles. For you a sovereign Parliament was the problem. It could therefore not be the solution.
Reflecting upon this idea, it is interesting to note, as Laura Cahillane has on this blog, how the Irish Free State, similarly extracting itself from the clutches of a sovereign Parliament, set up a US-style system of legislative review in the 1922 Constitution. But I’ll leave you to draw your own conclusions from Lord Judge’s speech.