The British judiciary, the Privy Council and the party system
Political Science - Major World Governments · Unit I · Topic 4 of 17 · 6 min read
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1. Features of the British judiciary
- Independence. Since the Act of Settlement 1701, senior judges hold office during good behaviour and can be removed only on an address of both Houses. No English judge has been removed this way.
- No judicial review of Acts of Parliament. Because Parliament is sovereign, courts apply statutes; they cannot invalidate them. They do review executive action for legality, rationality and fairness.
- Common law. Judge-made law based on precedent (stare decisis) is a primary source of law.
- One system of courts for officials and citizens alike, the basis of Dicey’s Rule of Law (contrast French administrative courts in Unit IV).
- Three legal systems. England and Wales, Scotland and Northern Ireland each have their own courts, with the UK Supreme Court at the top for most purposes.
2. Organisation of courts (England and Wales)
| Level | Civil | Criminal |
|---|---|---|
| Apex | Supreme Court of the United Kingdom | |
| Appeal | Court of Appeal (Civil Division) | Court of Appeal (Criminal Division) |
| Superior first instance | High Court (King’s Bench, Chancery, Family Divisions) | Crown Court (trial by jury) |
| Lower | County Courts | Magistrates’ Courts |
Alongside these sit tribunals, now organised under the Tribunals, Courts and Enforcement Act 2007 into a First-tier Tribunal and an Upper Tribunal.
3. The Law Lords and the Supreme Court
Until 2009 the highest court of appeal was the House of Lords in its judicial capacity. Appeals were heard by the Lords of Appeal in Ordinary, the Law Lords: up to twelve professional judges given life peerages under the Appellate Jurisdiction Act 1876. They sat in the legislature as well as judging, and the Lord Chancellor was at once a judge, a Cabinet minister and the presiding officer of the Lords. This was the clearest case of fusion of powers in Britain.
The Constitutional Reform Act 2005 changed this:
- It created the Supreme Court of the United Kingdom, which began work on 1 October 2009 with the then Law Lords as its first justices. It has twelve justices, headed by a President.
- Justices are selected by an independent selection commission and appointed by the King on the Prime Minister’s recommendation, the Lord Chancellor having limited power to reject a nomination.
- The Lord Chancellor ceased to be head of the judiciary (that role passed to the Lord Chief Justice) and ceased to preside over the Lords.
- It placed a statutory duty on ministers to uphold the continued independence of the judiciary.
The Supreme Court is the final court of appeal in civil cases for the whole UK and in criminal cases for England, Wales and Northern Ireland, and decides devolution issues. It still cannot strike down an Act of Parliament.
4. The Privy Council
The Privy Council is the oldest part of the British government, the descendant of the Norman King’s Council (Curia Regis), out of which Parliament, the courts and the Cabinet all grew. Today it has several hundred members, chiefly present and former Cabinet ministers, senior judges and some others, appointed for life.
Functions.
- Formal executive. Orders in Council and royal proclamations are made by the King “in Council”. A meeting needs only a few councillors and is a formality; the decision has already been taken by ministers.
- Judicial: the Judicial Committee of the Privy Council. Created by the Judicial Committee Act 1833. It hears final appeals from the UK overseas territories, the Crown dependencies and those Commonwealth countries that have kept the right of appeal, and certain domestic matters. Its members are mainly the justices of the UK Supreme Court. India ended appeals to it by the Abolition of Privy Council Jurisdiction Act, 1949.
- Ceremonial. The Accession Council proclaims a new sovereign.
Its interest for an exam is historical: it shows how British institutions survive by changing their function rather than being abolished.
5. The party system
Britain has a two-party system in government, though not in votes: smaller parties (Liberal Democrats, Scottish National Party, Reform UK, Greens and the Northern Irish parties) win seats, but since 1945 government has alternated between Conservatives and Labour. The first-past-the-post system rewards concentrated support and penalises spread-out support, which keeps the two-party pattern in place.
The Conservative Party. Descends from the Tories. Programme: tradition, national sovereignty, free enterprise and private property, a strong defence, gradual change. Organisation: the leader has wide authority over policy; the 1922 Committee of backbench MPs runs leadership contests and voices backbench opinion; candidates are shortlisted by MPs and the leader chosen by party members.
The Labour Party. Founded in 1900 as the Labour Representation Committee by trade unions and socialist societies. Programme: social justice, the welfare state and the National Health Service (1948), workers’ rights; Clause IV on common ownership was rewritten in 1995. Organisation: the Annual Conference and the National Executive Committee are formally sovereign; trade unions are affiliated; the leader is elected by members from candidates nominated by MPs.
Features of British parties. They are disciplined (whips enforce voting), national rather than regional, programme-based (the manifesto), and centralised around the leader. This discipline is what makes Cabinet control of the Commons possible.
6. His Majesty’s Opposition
The second-largest party in the Commons is the official Opposition, styled His Majesty’s Most Loyal Opposition, a phrase that captures the idea: the Opposition opposes the government, not the state. Its leader has been paid a salary since the Ministers of the Crown Act 1937.
- Government in waiting. The Leader of the Opposition forms a Shadow Cabinet whose members mirror the ministers.
- Criticism and scrutiny. Opposition Days (twenty a session, most allotted to the official Opposition) let it choose the topic of debate; it leads questioning at Prime Minister’s Questions.
- Alternative policy. It offers voters a choice at the next election.
- Consultation. On matters of national security and on the Speakership, it is consulted.
Jennings treated the Opposition as the alternative government and the focus of popular discontent, and its function as hardly less important than that of the government. A recognised, paid and loyal opposition is the British contribution to democratic theory.
How this is examined
Short notes dominate: the Privy Council (February 2025, Q.1(b)), His Majesty’s Opposition, the Supreme Court of the UK, or the Law Lords. An essay may ask for the organisation and functions of the British judiciary or for the features of the British party system. For the judiciary, the marks lie in the 2005 Act and in explaining why a sovereign Parliament leaves no room for judicial review of statutes.
Now try the real questions: Political Science - Major World Governments past question papers.