The Constitutional Reform Act 2005 marked a groundbreaking shift in power and roles within the constitution. Key changes involve the duty on ministers to uphold independence of the judiciary, an independent Supreme Court and an independent Judicial Appointments Commission. Saliently for the first time in almost 900 years judicial independence is enshrined in law. Further instruments have indicated a growth in power for the judiciary, such as the European Union Law giving the courts power to interpret to what extent domestic law is compatible. As well as these instruments, within the judicial system there has also been a growth in liberal judges who are not afraid to speak out against the government of the day, albeit controversially. This has led many to beg the question of whether the judicial branch should have this degree of power?
Firstly, an advantage of this power is identified through the fact that the judiciary provides an important check on government which is important to maintain and uphold the rule of law, namely the idea that ‘ no man is above the law’, (Dicey) for ‘where law ends tyranny begins” (John Locke) . This can be seen in the controversial case of Abu Quatada lasting 10 years, whereby the government led by the Home Secretary, Teresa May publically criticized the judiciary’s judgment that to deport Quatada would conflict with his freedom from torture, article 7 of the Human Rights Act 1998.
The opposition may argue that the judiciary has no right to rule on an issue in regards to public policy because they are unelected and this independence just interferes with the government’s function as David Blunket asserted, ‘ I am tired of seeing the Parliament creating laws just for the judiciary to overturn them ‘. However the judiciary is a branch of government created to prevent arbitrary power and provides an important check on the ministers. As a result of an uncodified constitution, arguably the ministers have no limitations and without the checks on power and conduct such as what the judiciary provides, ministers could quite freely undermine the rule of law without much difficulty.
Further, judicial power is important because the courts are significantly independent from politics and therefore not swayed by public mood and their security of tenure means that they don’t have the pressure of conforming to public trends to keep their position. This is important because all too often we witness politics becoming remarkably similar to a ‘blood-sport’, as described by the speaker of the house, John Bercrow whereby the country’s justice and appropriate policies have been replaced by politicians arguing and attacking each other on the basis of what party they belong to. As the judiciary doesn’t face such problems, the judges can focus on the right way forward for the country irrespective of trying to please the electorate. The courts however also recognize the need for balance, for example, making sure that they don’t become legislative as maintained in the Wednesbury principles, which is an approach that should be admired.
In the recent case of Osborn v Parole Boards 2013, the defendants looked to rely on the Human Rights Act however, Lord Reed emphasized that the court shouldn’t be focusing on the international legislation but rather the domestic law that could also provide protection. Such an approach is important as it ensures that local government still has power. Further, this authority was retained in the HS2 2014 case whereby the Supreme Court took the decision in not referring the case to the European Court of Justice. Still, the power given to the courts undermines the sovereignty of the Parliament.
As public confidence in the government increasingly diminishes due to such events as the expenses scandal, people now look to the courts to provide protection which has made way for clashes between the two branches. Instead of a relationship of comity this has turned into ignorance and it is arguable that the Parliament and the judiciary only just manage to rub along next to each other.
Recently David Cameron has expressed his concerns of judicial review and put forward a plan in 2012 to clamp down on judicial review procedures regarding immigration and asylum as he deemed that it was preventing economic growth. However it seems apparent here, as identified by many senior judges that the prime minister has missed the point, in putting up barriers in an already difficult area, this may inadvertently only cause discrimination.
To argue that the judiciary is out of touch as a result of their representation figures and further that as a result of their security of tenure there is no need to interact with the public delivering what they want, is an argument that possibly succeeds in holding that the courts really do have too much power. However is this not just the best of a complicated situation? For in sacrificing a democratically elected judiciary we are left with judges that have strong talents in the legal field and one can trust (at least to an extent) that their understanding of the law will mean that they will do right for all manner of people.
It is conclusive that the judiciary’s power is growing in society, however I think that this can only be good for humanity. Given the nature of our uncodified constitution, it is salient that an authority checks on the power of the elite executive, holding it to account to ensure that it doesn’t assume too much authority. However, we must beware of the dystopic drift of the American style of judiciary whereby it is so politically active it is almost another legislative body without a focus on justice.
Although it is difficult to find an ideal balance between the different branches of government, which will forever be dynamic and changing, I believe this discussion holds many advantageous points indicating why the judiciary should have power that shouldn’t be curtailed.