Aspects of contemporary economic constitutionalism


Question 2

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The United Kingdom has long been a source of consternation among constitutionalists. While never having had a written constitution, it would claim to be the source of two main aspects of contemporary “economic constitutionalism”: division of powers and a bill of rights. The urtext of the former is commonly regarded as Book 11, Chapter 6 of Montesquieu’s De l’Esprit des Lois (1748), which drew on English sources and used the English constitution as its model, while the latter is commonly regarded as the 1689 Act Declaring the Rights and Liberties of the Subject and Settling the Succession of the Crown.

The European Convention on Human Rights 1950 (European Convention) was repatriated to the United Kingdom under the Human Rights Act 1998. The Human Rights Act translates much of the European Convention’s Articles into United Kingdom domestic legislation, making the so-called Convention rights enforceable in United Kingdom law. In October of 2000, the Human Rights Act became law. The Human Rights Act is an effort to protect Parliament’s authority but still allowing human rights principles to play a part in domestic law.

The Human Rights Act works mainly in two areas. To begin with, it places an interpretive burden on the judiciary, forcing it to interpret the law in a way that is consistent with Convention rights wherever possible. If such clarification is not practicable, the judiciary has the authority to declare constitutional incompatibility. Such declarations have no bearing on the law’s validity. Rather, they serve as a warning clock, alerting the Executive and Parliament to the breach and putting the onus on them to correct the issue. Second, it makes it illegal for government agencies to behave in an incompatible way with Convention rights.

The Human Rights Act provides an inter-institutional dialogue with each branch of government, recognizing each branch’s distinct institutional viewpoint. Each government institution’s professional commitment to the discussion should not only increase the standard of human rights protections. Still, it should also ensure that human rights issues become integral to each institution’s decisions. Human rights must be “mainstreamed” because “a democratic society cannot prosper, nor can its members grow and strengthen their own sense of moral obligation, until they engage in the community’s deepest and most fundamental activities.”  The ability of each organization to conduct its duties professionally and without fear or favor and encourage the other arms to do the same is critical to the effectiveness of any negotiation model for rights security. Under the Human Rights Act, this is particularly true of the judiciary. Much would depend on how much deference the judiciary can offer to the elected branches of government in terms of citizenship. Much hinges on the reverence accorded to judicial interpretations by the elected branches of government and the general public.

Has everything changed due to the Human Rights Act (H.R.A.) and the subsequent establishment of a Supreme Court independent of Parliament and the executive, triggered in part by the new Act? The Human Rights Act of 1998 empowers courts to review laws for compatibility with the rights enshrined in the European Convention on Human Rights (ECHR), albeit in a “bad” manner that does not enable courts to misapply the statute but does compel them to either define legislation in ways that are consistent or declare it incompatible with the rights enshrined in the ECHR.



Parliamentary Supremacy

On the other hand, the Human Rights Act is not disruptive of Parliamentary Sovereignty, as discussed in sections 3 and 4 of the Human Rights Act. Parliamentary supremacy means that Parliament, as the U.K.’s sole law-making body, can make or repeal whatever law it wishes, and no other body can overturn an Act of Parliament. Finally, the Human Rights Act gives courts no official authority to strike down laws, and the Human Rights Act is not entrenched because it is not disruptive to Parliamentary Sovereignty. Parliamentary dominance continues to exist. The Human Rights Act, on the other hand, offers courts two options.

Where a clear interpretation cannot be found, the higher courts will use section 4 to grant a declaration of incompatibility as a second step. Section 3 requires courts to define and apply laws consistent with convention rights to the extent that this is practicable. This is compared to and more powerful than the traditional purposive approach to analysis (R v A). Furthermore, under s.3, the courts are not required to include an understanding of a law that is compliant with Parliament’s purpose when the statute was passed as the same as stipulated in Ghaidan v Godin-Mendoza.

This means that a specific clause is incompatible with the ECHR; it does not render the act void, but it does allow a minister to amend it by a fast track procedure (s.10). As a result, Parliamentary Sovereignty remains formally unchanged, as courts cannot overturn an Act of Parliament. Simply put, Parliament has the power to rule. Finally, the Human Rights Act is not well-established. Parliament’s constitutional procedure may replace it. As a result, the Human Rights Act had no negative impact on Parliamentary Sovereignty or Supremacy. Parliament is the sole law-making body of the United Kingdom; it has the power to make or repeal any law, including the Human Rights Act and legislation that is incompatible with the Convention.

When there is a conflict between the government and the European Court of Human Rights, one of the problems that often emerges is parliamentary sovereignty. In the domestic domain, this is preserved since the Human Rights Act of 1998 does not give U.K. courts the authority to overturn primary laws enacted by the Westminster Parliament. The concern then becomes whether the U.K. government is required by international law to respond to European Court of Human Rights judgments. Following the Conservative Party’s decision to make “fundamental changes to the way civil rights legislation operate in the United Kingdom,” this has been a special concern in the case of prisoner voting rights.

The Joint Committee on the Draft Voting Eligibility (Prisoners) Billspan> recently examined the U.K.’s obligations under Article 46, noting that the witnesses they heard, including a former Attorney General, Lord Goldsmith QC, and a former Conservative Lord Chancellor, Lord Mackay of Clashfern, believed that failing to comply with the U.K.’s obligations would be a violation of the rule of law.

Lord Sumption had re-stated a “fundamental concept underlying U.K. commitment to the ECHR,” according to the Committee. The theory of legislative supremacy is not a reason against giving substance to the decision of the European Court; Led by Lord Mackay, it concluded that,” Parliament retains its jurisdiction, although it does so by its ability to exit from the Convention system; while we are a member of it, we are bound by commitments that cannot be cherry-picked. Refusing to uphold the Court’s decision might not only harm the U.K.’s international standing; it would also provide comfort to those states in the Council of Europe with a weak track record of human rights protection and who might see such an action as setting an example they might like to pursue.”

Parliament retains its jurisdiction, although it does so by its ability to exit from the Convention system; while we are a member of it, we are bound by commitments that cannot be cherry-picked. Refusing to uphold the Court’s decision might not only harm the U.K.’s international standing; it would also provide comfort to those states in the Council of Europe with a weak track record of human rights protection and who might see such an action as setting an example they might like to pursue.

Parliament itself should take a leading role in upholding the liberties that are at the core of representative democracy,” says the Human Rights Bill. While Parliament should decide how best to scrutinize government acts under the H.R.A., the Labour government proposed that the best path would be to create a special Parliamentary Committee with responsibilities related to human rights.” The white paper did not specify the Committee’s composition or mandate. Still, it did propose three options: a joint committee in both houses of Parliament, a single committee of either chamber or a committee that sits together for certain but not all purposes. The white paper proposed that the current Committee’s mandate be to “execute inquiries on a variety of human rights matters related to the Convention” and produce recommendations to help the Government and Parliament determine what steps to take.


The Human Rights Act tends to be a reasonable balance between legislative authority and the security of human rights. The Human Rights Act was drafted and implemented on the assumption that such a balance was required and that neither legislative sovereignty nor judicially enforceable human rights safeguards could take precedence. Consequently, there is a clear judicial interpretative duty and judicial authority to declare incompatibility, which is balanced with legislative and executive reaction processes. These laws compel the three branches of government to communicate. Should the branch of government have the ability to articulate its interpretation of what human rights entail? Human rights have been a focal point of discussion.

This means that majoritarian actions are justified not only in terms of conflicting majority interests but also in terms of freedom. The representative branches of government make the final call, but they do it at their peril. Unhappy citizens can still demand redress from Strasbourg’s organs, and unhappy citizens can still mandate their discontent.


Question 3

Judicial freedom has long been described as a central aspect of England’s institutional arrangements and an important feature of the rule of law; it is one of the foundations upon which these institutions and systems are built. Despite this, until the Constitutional Reform Act (C.R.A.) of 2005, the definition had no direct legislative sanction in English law.

The lack of a written constitution under which judicial freedom, along with other fundamental values, is enshrined; the little involvement of judges in a Constitution under which Parliament is supreme; and the mystique around the definition itself, which has served as a defensive shield, all contribute to this. Although some law, such as that relating to judicial tenure and remuneration, implicitly acknowledges its significance, the preservation of judicial independence has depended primarily on conventions, common understandings, and the lord chancellor, whose fusion of judicial and executive duties has been seen as a key figure.

Requirements & Meaning of Judicial Independence

The need for judicial independence is often taken as a statutory granted in most western democratic countries. The term is used as if there is agreement on its definition and conditions. Most people believe that it exists to guarantee that judges can perform their dual roles of (a) defending residents from the government’s excessive use of force and (b) impartially settling conflicts between persons or between individuals and the state. Nonetheless, there are distinctions of focus. In countries where judges conduct constitutional reviews, judicial independence could be most important in ensuring that governments follow the constitution.

In the United Kingdom, the focus is on the courts’ sovereignty in maintaining the rule of law and, more importantly, ensuring human rights, as well as “preserving the judge’s impartiality in the situation and whatever the circumstances.” Regardless of how much weight is given to any one factor, judges cannot assert judicial freedom as a luxury for themselves; rather, it is “a right of the people and an individual, and a responsibility of the judiciary and a judge.” Apart from pursuing the needs of the particular case, such discretion also supports the larger goal of ensuring public confidence in the justice system. Apart from pursuing the needs of the particular case, such discretion also supports the larger goal of ensuring public confidence in the justice and government systems. As a result, judicial freedom can be seen as a solution to many ends rather than an end in and of itself, with its statutory meaning derived from those ends.

ACCORDING TO THE GOVERNMENT’S CONSULTATION REPORT, the C.R.A., which was meant to “redraw the relationship between the judiciary and the other branches of government and place it on a new footing, “6 according to the government’s consultation report, was partially a reaction to these changes. The Act creates a United Kingdom Supreme Court, which takes over the Appellate Committee of the House of Lords’ and the Privy Council’s jurisdictions in relation to the devolved legislatures of Wales and Northern Ireland, as well as the Scottish Parliament, and excludes the privilege of the most senior judges the “justice lords” to vote in the House of Lords’ parliamentary gallery.

It also radically changes the position of the lord chancellor, removing the requirement that the holder serves as a judge or as the head of the judiciary, with the latter function instead falling to the lord chief justice. The creation of a Judicial Appointments Commission, which limits the lord chancellor’s position to accepting or, on rare occasions, refusing the commission’s advice, further restricts the lord chancellor’s responsibilities to administrative or political roles, i.e., those synonymous with operating a government agency, although one that requires responsibility for the courts and the judiciary. Furthermore, the Act eliminates the necessity that lords chancellor be members of the legal profession, allowing them to be elected lawmakers who sit in the House of Commons and are responsible to it rather than the House of Lords. As a result, the change of focus from judicial to political roles persists.

As a result, the concept and conditions of judicial independence can differ depending on the context in which it is practiced. Major distinctions will arise based on the shifting legal environment, such as between a court of the first instance, where the judge considers factual issues and applies the rule according to tradition, and the highest appeals court, where the judge decides national policy issues and establishes a binding precedent, as the current Supreme Court will. There are also distinctions between civil and criminal courts, with the latter usually recognized as having the most discretion.

Furthermore, the sense of judicial independence can vary depending on the judicial culture in place. Since there is no universally accepted ideal model, deciding “what the theory entails in a particular nation at a given time” necessitates considering the historical and political background in which it exists.

In light of this, it’s not shocking that the C.R.A., like most statutory and legislative laws, lacks a concept of judicial freedom. Section 1, which serves to shield judges from efforts by lawmakers to intervene with or otherwise affect specific rulings, means that this defense applies exclusively to the judge deciding the case. However, the degree of discretion exercised by the actual judge making a decision is, predictably, not articulated and therefore subject to interpretation and debate.

The Act is explicit in rejecting the idea that judicial independence necessitates administrative autonomy. The Department of Constitutional Affairs will include the future Supreme Court and all other courts in England and Wales, with a wide range of logistical facilities and facilities, including human resources, property administration, and information technology. This is in contrast to the High Court of Australia, which, while still relying on the government for funding, is self-administering and performs these duties independently.

Under the constraints of the means available, Australia’s Court has more control than the current Court in the United Kingdom. The C.R.A. recognizes the need for adequate funding and judicial consultation on matters concerning the administration of justice, and, in a novel move, it directs the Lord Chief Justice to report judicial concerns on these issues to Parliament; however, the model of judicial independence presented by the Act is limited, particularly when compared to arrangements in other judicial systems.

The Act, therefore, makes no mention of what constitutes a challenge to judicial integrity or how to defend against it. Several widely agreed mechanisms are designed to shield judges from potentially harmful conditions, the most obvious of which are guidelines relating to appointment, tenure, and remuneration, which have long been established by legislation in England and elsewhere. The C.R.A. is unclear on what defending judicial independence implies. Still, during the bill’s passage, debates in Parliament appeared to mean that the Lord Chancellor would retain the same position as before, though as a constitutional rather than a customary one. In one important respect, this is not the case. As head of the judiciary and a cabinet minister, he is responsible for safeguarding judicial freedom against threats from both judges and politicians.




There is no agreed-upon model of judicial independence, and therefore no consensus on its demands, except a few basic provisions. The concept’s fluidity is a core feature in many ways, as it allows it to respond to political, social, and functional requirements to some extent. Given the elusive existence of judicial independence, determining what changes could place it under threat or weaken public trust in the judiciary is also challenging.

In light of this, the adoption of constitutional protection merely in the sense of having regard to the need to uphold judicial independence while acknowledging the concept’s importance might be of little functional use. The traditional defense given by the Lord Chancellor was based on universal principles and commonality of meaning, and the vagueness of the statutory law means that it, too, would be based on equally arbitrary considerations.

When it comes to promoting the cause of judicial freedom, the current Court will need to be pragmatic in some respects and, like all of its peers, have a public accessibility and education program. This can include supplying laypeople with summaries of its decisions and interacting with the media, designing public relations campaigns, and informing people about its position and the constitutional values that support it. A constructive, transparent, and responsive Supreme Court is more likely than a government minister, even one with the lofty rank of Lord Chancellor, to uphold and defend judicial freedom.

Question 4: Role and Effectiveness of Tribunals

Tribunals are specialized judicial agencies that resolve legal cases in a specific field. The Courts and Enforcement Act of 2007 established a framework for most tribunal jurisdictions. Tribunals hear a wide variety of lawsuits, including labor disputes between contractors and workers, as well as appeals against government decisions (including social security benefits, immigration and asylum, and tax credits). A year, they hear over a million lawsuits, more than any other aspect of the legal system. Tribunals’ authority varies, with some extending to Scotland and Northern Ireland and England and Wales.

In the United Kingdom, tribunals play a critical role in the institutional justice system, settling over one million disputes each year, the majority of which are between people and the state. However, little is known about the factors that affect tribunal decisions. The United Kingdom’s tribunal system is part of the country’s administrative justice system, with tribunals classified as non-departmental governmental bodies (NDPBs). Like courts of justice, tribunals use procedural systems to resolve cases, but they have particular rules and regulations and usually deal with a certain kind of dispute. Their protocols, in principle, could be ideally suited for specific forms of disputes, be less expensive to execute, and entail less trained officials. However, in the case of appeals, cases will be heard in the traditional legal system, with the possibility of joining the Court of Appeal and the U.K. Supreme Court, ensuring that the judiciary has control over the tribunals.

Tribunals handle a broad range of practices, privileges, and entitlements, and they operate in a variety of jurisdictions. However, most tribunals share characteristics with courts: comparatively straightforward procedures for filing appeals, adjudication by a joint jury of legal and lay decision-makers, relaxed standards of evidence, an inquisitorial atmosphere, and sometimes a lack of legal participation at proceedings.

Job tribunals, the Office of Fair Trading adjudicators, the Gender Recognition Panel, the Planning Inspectorate, and the Company Names Tribunal are also examples of tribunals. Though it has evolved on an ad hoc basis since the turn of the century, changes were implemented in 2007 to provide a centralized structure with recognized judicial jurisdiction, appeals paths, and regulatory oversight. The Senior President of Tribunals is in charge of the U.K. tribunal scheme.


Tribunals may provide a wide range of decision-making mechanisms. Despite possessing processes that are somewhat similar to those of a court of law, tribunals are not subject to the same common law and statutory laws that apply to courts. Tribunals frequently have their authority given to them by an act of Parliament. The courts cannot normally invalidate laws under English civil law because the U.K. does not have a written constitution. Judicial appeals, on the other hand, enable courts to overturn tribunal decisions. These set out certain common law guidelines on how tribunals should make rulings to some extent. Constraints include the right to a fair hearing, the obligation to include arguments for decisions, the requirement that decisions be sound, and the requirement that neutral parties make decisions.


Appointments within the Tribunal

Tribunal proceedings may take place in a variety of environments, including traditional courtrooms or informal hearing rooms. The majority of tribunal appointments are compensated, but there are about 500 salaried tribunal judges. The Judicial Appointments Commission makes most tribunal appointments, which must satisfy the constitutional qualifications for the individual tribunal. They also reached the age of retirement, which is 70 years old.

The presence of special courts functioning in conjunction with the regular judicial system is nothing new in the United Kingdom, unlike in many other nations. Courts of chivalry, ecclesiastical courts, and courts-martial are all examples of this, with others dating back to medieval times. Sir Robert Carnwath, the first occupant of the current office of Senior President of Tribunals (see below), has pointed out that in the 17th century, the Commissioners of Customs and Excise were controversially given the authority to adjudicate on disputes over tax or excise duty (Carnwath, 2009a). Still, although this use of a non-judicial body for such reasons is controversial, it is not unprecedented.

The specialist courts judicial tribunals that we are discussing here have their roots in industrialization and the growth of the modern interventionist state, which can be seen as part of the prehistory of our current subject matter. Their background is well-documented in scholarly journals (Wraith and Hutchesson, 1973; Farmer, 1974; Stebbings, 2006; Cane, 2009). The tale starts in the first half of the nineteenth century, with the development of railways. The business activities of the vast and monopolistic, privately-held railway companies occasionally resulted in legal disputes.

The Tribunals Service was established in 2006 due to Sir Andrew Leggatt’s 2001 Review of Tribunals, which brought together a variety of different government agencies. Tribunals that are already in place as well as those that are being developed. The Tribunals convened shortly after that. The Courts and Enforcement Act of 2007 created a new judiciary system. First-Tier and Upper-Tier tribunals make up the hierarchy for tribunals. Tribunals are a form of Court. After that, in April 2011, a new management authority was created. When the Tribunals Service was created, it was for the sake of civil justice. H.M. Courts Service (HMCS) was combined with it to form a new body. H.M. Courts and Tribunals Service (HMCTS) is a government-run department. The Ministry of Justice was created. The Nuffield Foundation was founded in 2007.

Decision making in Tribunals

Tribunals were selected for this seminal analysis of judicial decision-making in the United Kingdom. They include all of the elements needed for a rich and nuanced review of decision-making. Tribunals adjudicate the highest number of proceedings in the justice system. They include a representative group of decision-makers who often meet in multi-member panels and decide cases both in oral trials and solely based on the documents.

These factors enabled this study to look at the complexities of judicial decision-making, including the influence of the hearing format, the accuracy of rulings, the impact of legal regulations, and the contribution of legally and no legally eligible panel members, and the impact of panel member history and attitudes on decision-making.

The opportunity for better continuity in tribunal decision-making was cited as a primary advantage of the reorganization of tribunals. The Leggatt Review concluded that combining various tribunals into a single consolidated service with similar laws would improve decision-making and continuity.

The Review further claimed that tribunal committees made up of both lawyers and non-legal professionals benefited from having a diverse set of expertise to bear on tribunal decision-making. There has been no longitudinal study on the accuracy of tribunal decisions in this region, nor has there been any research on whether the diverse educational qualifications of tribunal panel members influence their decision-making.

Empirical analysis on judicial decision-making in other jurisdictions has found that several influences, including institutional, professional, and group factors, can impact the accuracy of judgments. The structure of judicial panels can affect the standard of judicial decision-making. This research is the first comprehensive investigation into tribunal decision-making in the United States.
















Act of Settlement, 1701, 12 & 13 Will. 3, c. 2 (U.K.); Courts Act, 1971, c. 23 (Eng.); Supreme Court Act, 1981, c. 54, §§ 11(3) & 12 (Eng.).


Annual Tribunals Statistics, 2011–12: 1 April 2011 to 31 March 2012, Ministry of Justice (2012).

Annual Tribunals Statistics, 2012–13: 1 April 2012 to 31 March 2013, Ministry of Justice (2013).

Debeljak, J., 2003. The Human Rights Act 1998 (U.K.): the preservation of parliamentary supremacy in the context of rights protection. Australian Journal of Human Rights, 9(1), pp.183-235.

Drewry, G., 2009. The judicialisation of ‘Administrative’tribunals in the UK: From Hewart to Leggatt. Transylvanian Review of Administrative Sciences, 5(28), pp.45-64.

Dworkin, R. B. (1996). Limits: The Role of the Law in Bioethical Decision Making. Indiana University Press.

For a discussion of the role of Lord Chancellor, see DIANA WOODHOUSE, THE OFFICE OF LORD CHANCELLOR (Hart 2001).


Kohen, A., 2006. The problem of secular sacredness: Ronald Dworkin, Michael Perry, and human rights foundationalism. Journal of Human Rights, 5(2), pp.235-256.

Lord Hope of Craighead, Judicial Independence, [2002] S.L.T. 105.

  1. Partington, E. Kirton-Darling and F. McClenaghan, Empirical Research on Tribunals: An Annotated Review of


Mrs. Justice Susan Denham, Justice Supreme Court of Ireland, The Diamond in a Democracy: An Independent, Accountable Judiciary, 5 THE JUD. REV. 31 (2001); see also Chief Justice Gleeson, Public Confidence in the Judiciary, 14.7 JUD. OFFICERS’ BULL. 50 (2002).

Research Published between 1992 and 2007, Administrative Justice and Tribunals Council (2007).

Sir Andrew Leggatt, Tribunals for Users: One System, one service, Lord Chancellor’s Department (2001).

The Use and Value of Oral Hearings in the AdministrativeJustice Context, Council on Tribunals Consultation Paper (2005).


There is an immediate recognition in the Justice (Northern Ireland) Act, 2002, ch. 26, § 1, which states: “Those with responsibility for the administration of justice must uphold the continued independence of the judiciary.


Thomas Paine, The Rights of Man, Part Iin POLITICAL WRITINGS 81, 131 (B. Kucklick ed., 1989)

Transforming Tribunals: Implementing Part 1 of the Tribunals, Courts and Enforcement Act 2007 CP 30/07, Ministry of Justice (2007). For a Canadian judicial perspective on tribunal, consistency see: K. Whitaker, M. Gottheil and M. Uhlmann, Consistency in Tribunal Decision Making: What Really Goes On Behind Closed Doors, paper presented at the Canadian Institute for Administrative Justice Roundtable, Vancouver, 18 May 2021

van Zyl Smit, J., 2007. The New Purposive Interpretation of Statutes: H.R.A. Section 3 after Ghaidan v Godin-Mendoza. The Modern Law Review, pp.294-306.

Wraith, R.E., Hutchesson, P.G. and MacDonald, A., 1973. Administrative tribunals (pp. 33-42). Allen & Unwin for the Royal Institute of Public Administration.

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