Thoughts from the criminology team

Home » Judiciary

Category Archives: Judiciary

Constitutional Crisis? What Crisis

Dr Stephen O’Brien is the Dean for the Faculty of Health, Education and Society at the University of Northampton

Over the past few weeks our political lexicon has been further developed. We have all learned a new word. The word in question is prorogation. Hands up who had heard of this term before recent events in parliament? I see very few hands up. What we all now know is that this is the term that defines the discontinuation of a session of a parliament or other legislative assembly without dissolving it. It means parliament’s sitting is suspended and it ends all current legislation under discussion. It is usual for this to happen every autumn. The current prorogation is for five weeks and includes a three-week period that would typically be recess anyway, during which the Liberal Democrat, Labour and Conservative party conferences are held, but is nevertheless longer than usual. However, there are several highly irregular factors at play here. For prorogation to last more than a month is unprecedented in recent times. For example, since the 1980s prorogation has typically lasted less than a week. So, what is going on and why is this prorogation proving to be so contentious?

The heart of the matter is the issue that has dominated UK politics for the past three years, namely Brexit. Despite a vote to leave the European Union (EU) back in June 2016 we currently remain part of the EU with the deal negotiated under the previous prime minister Theresa May culminating in a withdrawal agreement that was soundly rejected by parliament on several occasions. This has set up tensions between the people and parliament. How do we enact the will of the people and honour the referendum result within a parliamentary democracy where there is no majority for any Leave deal on the table?

The new prime minister Boris Johnson and his cabinet are resolved to break the political impasse by leaving come what may “do or die” by October 31st, 2019. So, with the country rapidly approaching the deadline for leaving the EU, Parliament has been working to pass a law that would prevent the UK crashing out without a deal, regardless of the fact that Boris Johnson has promised to leave on that date. With no deal currently agreed and no law allowing a no deal exit the Government would be obliged to ask the EU for another extension. There are suggestions from some quarters that the Government might ignore any law requiring them to agree an extension with the EU. Given this situation some politicians have been dismayed that parliament will not be sitting while the situation remains unresolved. Hence the view that this prorogation is stifling parliamentary debate on the most crucial political issue in a generation.

The act of prorogation took place in the early hours of Tuesday September 10th with a ceremony involving a message from the Queen being read in the House of Lords and then Black Rod summoning MPs from the Commons. A list of all the bills passed by the parliament was read, followed by a speech on behalf of the Queen announcing what has been achieved by the government before MPs were sent home. Johnson intends for parliament to return on 14 October with a Queen’s speech, which he says will “bring forward an ambitious new legislative programme for MPs’ approval”. He will then almost immediately have to head to Europe for the vital EU council, which is the last chance for him to obtain a new Brexit deal or to ask for an extension of article 50.

The situation has been deemed a constitutional crisis by some and the fact that parliament is not sitting at this critical time is being seen by some as undemocratic, indeed unlawful. Indeed, the act of prorogation has been subject to judicial review for the past couple of weeks. Scottish appeal court judges declared Boris Johnson’s decision to suspend parliament in the run-up to the October Brexit deadline unlawful. The three judges, chaired by Lord Carloway, Scotland’s most senior judge, overturned an earlier ruling that the courts did not have the power to interfere in the prime minister’s political decision to prorogue parliament. The key issue in question being whether the act was in breach of the constitution, as it was designed to stifle parliamentary debate and action on Brexit.

Regardless of the legal arguments which ended up being played out in three dramatic days this week in the Supreme Court the Brexit process and endgame has pointed up a range of tensions at the intersections of our constitution. The old political landscape is being swept away and being replaced by a much more complex set of political indicators. Left versus Right which had been making a comeback after years of centrist neo-liberalism has been replaced by Leave versus Remain which pervades across the old battle lines. Furthermore, other tensions are apparent as set out below.

  • People versus Parliament (How to deliver the referendum result in a parliamentary democracy)
  • Executive (Government) versus Parliament (especially when the executive has no overall voting majority)
  • The Executive versus the Judiciary
  • The position of the Judiciary as related to Constitution
  • Politics versus The Law
  • The roles and power relationships of the Executive, Parliament and the Judiciary as related to The Constitution.

What the overall Brexit process has created is a new socio-political landscape in the UK, with distinct differences in each of the four countries. It also illustrates how complex the nature of our constitution is given there is no written version and we depend on precedent and convention. The intersections are thrown into sharp relief by the current “crisis”.

Whilst all of this may be concerning as the old order shifts the really concerning question is whether the Executive will abide by the law. Given the outcomes of Parliament in terms of blocking “no deal” regardless of the Supreme Court Judgement on the legality of the prorogation. So, will we leave EU on October 31st? Utilising classic political phraseology, I’d say there is still all to play for, it’s too close to call and all bets are off.

Dr Stephen O’Brien

White and Male: the diversity of the judiciary

blog- pic (002).jpg

My name is Anita and I graduated with a Criminology degree in 2016. I did have a great time at the University of Northampton. The course was challenging and intense however this meant that it provided me with the opportunity to overcome my barriers and develop myself both academically and personally. I miss going to lectures and seminars, revising for exams and even writing the dissertation. If you are reading this and you are in your third year, you are probably thinking that I am mad but I do miss it. I can’t help it! I can honestly say that going to University was the best decision I ever made and I would love to go back and do a postgraduate course. My advice to all students is enjoy it because time goes by so fast.

Before we start, please stop and think…… What percentage of court judges would you guess are women? How many members of the judiciary are from ethnic minorities?

If your guess is that we have a substancial amount of women and members from ethnic minorities in the judiciary, then this blog post might dissapoint you.

Let’s define the judiciary before we progress any further. The judiciary can be defined as ‘the judges of a country or a state, when they are considered as a group’ (Hornby, 2000, p.700).

The judiciary in the UK is dominated by Oxbridge educated white middle-class men. It is estimated that three quarters of all judges in England and Wales are male and 95% are white (Lieven, 2017). The gender imbalance can be well illustrated by looking at the Supreme Court. There is only one woman among the 12 Justices on the Supreme Court. Lady Hale is the only woman ever to serve on the Court and all of the judges are and have always been white. Only Armenia and Azerbaijan have lower proportions of women in their judiciary than the UK (Lieven, 2017). This is unacceptable in 2018, changes must be made to address this gender imbalance.

In terms of race, as at 1 April 2017, only 7% of court judges were Black, Asian or Minority Ethnic (BAME). Of these Asian and Asian British accounted for 3% and the remaining three groups, Black and Black British, Mixed Ethnicity and Other Ethnic Group at around 1% each (Ministry of Justice, 2017).

This shows that judges are not reflective of wider society. This is a significant problem because the public should be confident that the judiciary delivers justice fairly. The lack of diversity means that concerns about the legitimacy and objectivity of judgements may be raised.

There are three main explanations for the continuing lack of diversity. The first explanation is that there are not enough women, BAME people and people from less privileged backgrounds who would be suitable for appointment. However, I would question the validity of this argument. This explanation seems to suggest that women or BAME people might be lacking lacking adequate knowledge or experience. There is no evidence to support this argument.

The second explanation given is that women and BAME candidates do not apply for appointment. However, it could be argued that the issue is more complicated than simply failing to apply. For example, Allen (2009) found that when BAME candidates and solicitors do apply for appointment they are significantly less likely to be successful than white candidates or barristers. This shows that the issue is not the lack of applications received from women or BAME candidates but perhaps the discriminatory recruitment process.

The third explanation is that the key principle governing our appointments to judicial office is merit. Unfortunately, the term ‘merit’ is not defined, but the implication is that achieving merit and diversity are at odds.

In conclusion, the lack of diversity in the judicial system is very concerning and should be addressed as soon as possible. This needs to be done to ensure that our justice system is fair, accessible and efficient. It is in our interest to produce a judiciary of the highest quality that reflects the make-up of our nation. Difference should be valued and not feared.

References

Allen, A (2009) Barriers to Application for Judicial Appointment Research. London: Judicial Appointments Commission.
Hornby, A.S (2000) Oxford Advanced Learner’s Dictionary. 6th ed. Oxford: Oxford University Press.
Lieven, N (2017) Increasing judicial diversity. London: Justice.
The Ministry of Justice (2017) Judicial Diversity Statistics 2017. London: MOJ.

%d bloggers like this: