Exploring the Constitution
Is the Judiciary too powerful?
Arguments to say it is too powerful
In practice the Judiciary are changing the doctrine of Parliamentary Supremacy, which has been fundamental to the British Constitution. The Factortame case, about fisheries law, established the supremacy of the European Court over Acts of Parliament and the Human Rights Act has led to Parliament changing other legislation. Senior judges have suggest that upholding judicial review is more important that the view of Parliament.
Judicial review is now leading judges into policy making. Cases are being brought by special interest groups often backed with a wealth of information and arguments about the policy under review. Kenneth Clarke, the former Secretary of State for Justice, feels that even quite small points of law are being looked at. Judges are moving into consideration of policy and this may conflict with the priorities of politicians and the public, as over immigration and asylum cases and the treatment of criminals in prison.
New principles are being brought into British law. Previously the Wednesbury principle was used by the British courts and this meant that judges would only declare a decision illegal if there was no possible justification for it. The burden of proof now goes to the public body. The ECHR principle is also one of proportionality, so that the restriction on rights has to be the minimum needed to justify the public objective and public bodies have to prove this too. It is also the case that the right to respect for privacy and family life is not one with which the British courts are familiar.
The Constitutional Reform Act has given the Judiciary greater independence from the Executive. This raises the question as to whether they are accountable to Parliament and to the electorate for the sorts of decisions that are being taken and whether judges are socially representative, if they are going to take more decisions that affect public policy.
The system has become more politicised. As well as conflict over cases, there have been arguments between judges and the Government over the budget for the legal system and over pensions. The Secretary of State for Justice is now a middle ranking Cabinet minister who may have further political ambitions and so may be thinking about party and public opinion in framing conflicts with the judges.
The Rule of Law is fundamental in a democratic society and the independence of the Judiciary maintains it. The impact of the State on the individual has become greater and the internet makes more surveillance possible. The Supreme Court has not been made into a Constitutional Court but it will be more confident in what it sees as its scope and it is better resourced.
Some conflict between the Executive and the Judiciary is inevitable and even healthy and shows that there are checks and balances between them. There is now greater scrutiny of the decisions of public bodies and the Judiciary is right to complain about and even overrule, for example, Government attempts to put ‘ouster’ clauses in Act of Parliament that try to prevent judicial review in these areas.
Judicial decisions have been protecting minority groups such as people with a disability, people with mental health problems, gay and transsexual people and children. The idea that Parliament can impose the will of a majority on minorities no longer matches the pluralism of British society and the courts are reflecting this. The importance of human rights is now internationally established and a British Bill of Rights would be unlikely to be very different from the European Convention.
The courts have actually been fairly cautious in extending the new human rights agenda. The British courts developed an ECHR view on local discretion into the principle that Government has more understanding of the topic that a case refers to than the courts and so, as long as there is an explanation for a decision that is detailed enough, then that is sufficient. British Judges have generally accepted the Government’s arguments about the overriding importance of national security and have avoided comment on the European Court of Human Rights decision on whether some categories of prisoners should be able to vote.
Recent changes have made the process of appointing judges much more open. The Judiciary is becoming more accountable to Parliament and to Government.