The Judiciary Flashcards
arguments to suggest that the judiciary has become too powerful
increased use of judicial review
growth in judicial activism
security of tenure makes it harder to hold the judiciary to account
arguments to suggest that the judiciary has NOT become too powerful
judicial review is essential in holding the government to account, suggests that the judiciary has just the right amount of power
parliamentary sovereignty means that parliament can ignore criticisms from the judiciary
security of tenure allows judges to do their jobs without fear of being removed
increased use of judicial review
increasing use of judicial review, which is a form of court proceeding where judges review the lawfulness of a decision or action of a public body
in 2013, there were over 15,000 applications for judicial review, up from 4000 in 2000
in 2014, 36% of judicial review cases led to a change in a decision by a public body
this may give judges too much power, they may be overstepping their role and trespassing on that of the executive and legislature as they are unelected and unaccountable yet make judgements which have wide political implications
there are issues regarding whether the unelected judiciary should be able to dictate what a democratically elected government can do
since the introduction of the HRA 1998, the courts have an increased ability to do this as they can review actions by the government that might contravene the ECHR, it has given the judiciary unprecedented quasi-legislative powers which allows unelected judges to effectively alter the law and second guess parliament
arguably, too much power is placed in the hands of unelected and unaccountable judges and such unaccountability gives rise to the risk of the judiciary overstepping its role and abusing its power to interpret the law
this power is dangerous if they overstep their role and behave tyrannically
judicial review is essential in holding the government to account, suggests that the judiciary has just the right amount of power
the judiciary is important in holding the government to account
it is a vital check on power and is essential in protecting civil liberties and the rule of law by ensuring that the government does not overstep its powers (known as ultra vires)
for instance, Gina Miller requested a judicial review on whether David Davis, Secretary of State for exiting the EU, had the prerogative powers to trigger Article 50 which would start the process of leaving the EU
the Supreme Court held that the government did not have such a prerogative power so had to seek parliamentary approval to trigger Article 50
Lord Deben said that “it is unacceptable if we have a system whereby if the government had acted illegally it cannot be bought to account in the courts” and called judicial review “the defence of freedom”
another example of judicial review being essential in holding the government to account is the Belmarsh case of 2004 in which 9 suspected terror suspects had been held for several years without a trial in Belmarsh prison under the Crime and Security Act 2001
they appealed against their detention and the SC ruled that the 2001 Act was incompatible with the ECHR and as a result, the government chose to heed the judges warning and release the prisoners
this shows that the government sometimes uses emergencies as a justification for extending their executive power and that this needs to be checked by the judiciary as in this case, the government was violating an ancient British principle and contradicting their own HRA 1998
this suggests that while the judiciary can be criticised for being unelected and unaccountable, what is more important is the vital check it provides on government power, which is an essential part of any democracy
growth in judicial activism
one of the most significant reasons that suggests that the judiciary has become too powerful is the growth in judicial activism
this involves judges becoming more willing to get involved in political matters by launching outspoken attacks on government policy
to ensure neutrality, judges are discouraged from engaging in open political activity so the growth in judicial activism suggests that they have become too powerful
for example, Lord Woolf (the Lord Chief Justice from 2000 to 2005) spoke out against some of the provisions of the CRA 2005 and severely criticised the government’s handling of the constitutional reform process
similarly, Lord Neurenberger (the previous president of the Supreme Court) attacked Theresa May when she was home secretary in 2013 for criticising judges over their failure to deport foreign criminals, saying that her views were “inappropriate, unhelpful and wrong”
furthermore, the MPs expenses scandal gave rise to the issue regarding what circumstances the courts can intervene and make judgements on political matters
MPs argued that they were protected by parliamentary privilege which means that parliament should make the judgement, not the courts
however, the courts held that the expenses needed to be examined outside of parliament, some argued that this was a constitutional issue as judges were taking on the role that belonged to Parliament
these examples demonstrate the extent to which judges have become public figures willing to criticise the democratically elected government which suggests they are too powerful
parliamentary sovereignty means that parliament can ignore criticisms from the judiciary
parliament is still sovereign and they can ignore criticisms from the judiciary
it is their choice whether to listen to the judiciary or dismiss its suggestions
the government can simply overrule the judiciary through an act of parliament passed by a majority, which is usually achieved due to the electoral system of FPTP (link to unit 1 topic on electoral systems)
therefore, this suggests the judiciary is not too powerful, it is simply a useful guide for the government, it is not above the elected executive but rather exists to ensure that the law is above the government
arguably, judicial activism actually demonstrates some degree of health in the judiciary as it reinforces the fact that they are independent of parliament if they are willing to critique it
security of tenure makes it harder to hold the judiciary to account
security of tenure allows the judiciary to be too powerful as it makes it even more difficult to hold unelected judges to account
security of tenure means that once appointed, justices cannot be removed and remain in office until their retirement age of 70
this may be an issue as these judges are making important decisions and often criticising those who are elected without being held accountable
security of tenure allows judges to do their jobs without fear of being removed
judges are experts better suited to make such decisions and security of tenure allows them to do their job without fear of being removed
they can focus on the long term instead of considering their short-term job prospects and acting solely to avoid being dismissed
senior judges such as Justices in the Supreme Court can only be removed by the monarch following a petition by both houses, but this has not happened since 1830
consequently, the possibility of removal or demotion cannot be used against them to affect their decision making which ensures independence and reinforces the view that the judiciary has not become too powerful – rather, it has just the right amount of power
