The Constitutional Role of The Judiciary

‘Judicial power has increased for good reasons, but it has led to the politicization of the
judiciary and that is most unfortunate.’
Discuss.

In any constitution, upholding justice and the Rule of Law is crucial. Such doctrines

directly compliment the proper working of the legal hands of a state, and ensure that the

society is operating on an optimal level without left or right-wing criticism. Strictly

speaking of the UK, the powers of the judiciary are such that goals such as the ones

mentioned above, are achievable. With increasing power within the Judiciary’s capacity,

there has been criticism as to its decisions that are perceived to be political, and

therefore, disliked by many with statements that enclose facts that point towards

judiciary’s fundamental roles: being independent in their decision and interpreting laws,

and giving them effect. Hence, scrutinizing these events is crucial to answering the

question of the increase in judicial power and the issue of the judiciary’s politicization.

Since the Parliament became more in charge of the Constitution after the Monarch, the

courts have generally enjoyed the freedom of exercising the powers granted to them by

the Constitution. There are noteworthy features here to discuss as well. One of the first

that comes to mind regarding judicial powers is The HRA 1998, which can be

understood as being a delegated legislation of the ECHR as the convention is

implemented into the English legal system, which brought several changes in the

English Legal System. Section 3 and Section 4 of the Act are of importance here.
Where the courts have been granted the power to interpret the laws made in the UK

such that they align with the principles of the ECHR. Additionally, the courts also have a

right to declare incompatibility according to Section 4. A practical example of such a

case can be taken from Bellinger v Bellinger (2003) where a clash between the

Matrimonial Causes Act 1973 and Article 8 of the ECHR took place. The classic case of

Entick v Carrington is also of significance here.

Another noteworthy topic of discussion is Judicial Review, which provides the judiciary

with a regulatory role and works on the principles of administrative law, whose primary

function is to supervise the powers given to the Executive and other public bodies, such

that there is no unlawful action taking place, nor are there vague legal reasons provided

for a particular action. As Endicott pinned it in his words, the primary role of

administrative law is to align the public bodies with the Rule of Law. A common

misconception about judicial review, however, is that many people think the process

involves amending or deeming a particular executive decision wrong, though that is not

true. The Judicial Review is mainly engaged in the decision-making process, identifying

whether the Executive gave the correct legal basis to support its new rules and whether

these legal bases are considered ‘lawful.’ On these grounds, one can say that the

Judicial Review has more of a supervisory rather than an authoritative stance. A crucial

point here, however, is during times when the case is mainly regarding secondary

legislation, where the Courts can in fact, overturn a decision by using the principles of

ultra vires, stating that the legislation was used in a way that directly goes out of the
scope of powers which were provided to the government or the public bodies by the

primary legislation.

Judges did not enjoy the same liberation in politics. Previously, they were discouraged

from openly denoting their political viewpoints, they were not allowed to show their

support for a specific political party openly since it was thought that this would cause the

judges to lose their independence, something that went directly opposite to the doctrine

of Independent Judiciary, which states that a judge should be seen to be impartial from

external pressures, politics, and personal beliefs. Judges were also restricted by the

Kilmuir Rule, which prevented them from voicing their personal beliefs on the media,

due to the same reasons as mentioned above. However, this ban was lifted in 1984.

Though, this did not mean that justices were free to openly voice their opinions on

everything. According to the Guide to Judicial Conduct, judges are allowed to participate

in debates regarding various topics. However, they are also warned to be careful to not

damage their reputation as an impartial judge in the eyes of the Public.

Nonetheless, criticism still followed regarding the increasing judicial power, and also,

their participation in making political decisions. The rise in this debate came forth during

the process of Brexit, precisely during the Miller case, where the Supreme Court upheld

the decision of the High Court, who were labeled as ‘enemies of the state’ by the Daily

Mail, a reputable news source of the country. The Supreme Court, in its decision, stated

that the government must come forth with an Act that allows the UK to depart from the
European Union, the use of Royal Prerogative in this regard, merely, wasn’t the correct

method according to the courts. Another point of time where the Judiciary was thought

to have overstepped its powers and given controversial, political statements was in

September 2019, regarding the usage of Prerogative Powers to prorogue Parliament.

This happened during the issues of Brexit. Here, the former Prime Minister Boris

Johnson decided to prorogue the Parliament for five weeks. Supreme Court did not

support this decision, where Lady Hale, the then president of the Supreme Court argued

that without viable basis, the courts cannot stop its operation for such a long period (that

could extend to eight weeks as well) and halt the cases during such a crucial time.

Consequently, Judicial Review has been entitled as one of how the courts have taken

political approaches towards certain issues. The government also attempted to

introduce reforms regarding the Review, where, the then Lord Chancellor stated his

opinion on the Review, noting that the intention and the creation of the Review didn’t

mean that it was in any way to be used as a tool to overthrow the decisions made by the

government, nor was it to be used in political intentions. Nonetheless, according to him,

both the latter-mentioned points were exactly what seemed to be happening. However,

Lord Kerr, speaking in favor of Judicial Power, and in response to Boris Johnson’s

attempts to ‘attack’ lawyers, stated that unchecked power of the governmental

institutions is not only detrimental to the nation but is also the last thing that the State

needs. Another argument here is of essence too, which relates to the core functions of

the Judicial Review, that is, that the Review can not overrule the decisions made by the

government, rather only keep a check on them.

One can also see the practical instances regarding Judicial Review as being a means of

Judicial Politiciation. A noteworthy example here is the case of R v Lord Chancellor ex

parte Witham, where the basis of criticism was that the matters that fee-concering

matters were related to policy, something which was not under the powers of the courts,

rather, the Executive. Another similar case to the one discussed previously was in 2017,

regarding the Tribunal Fees, where the Supreme Court overruled the Ministry of

Justice’s new tribunal fee structure, stating that it disallowed the common man to

access justice. Further, it was ruled that the payments made during the overruled policy

are meant to be refunded to the concerned parties. The case of Facial Recognition

Technology (2020) is also of significance here, where the Court of Appeal stated in its

decision that the facial recognition technology used by the South Wales police group

breached the civilians’ right to privacy, directly breaching Article 8 of the ECHR.

Lastly, the judiciary has also been accused of being political and racial in the selection

of justices. The previous ideology of courts only having male, pale, and white justices is

something which, according to critics, is still very much true because most judges seen

are from privileged backgrounds, with private schooling, and other factors that

complement the attributes of a typical white judge. Furthermore, the unfortunate

statistics regarding lower female and BAME candidates also make this accusation more

credible.