Chapter 21

Chapter Summary

Although not at the heart of the regular policy-making process in Britain, the courts are nonetheless now significant actors in the political system. Traditionally restricted by the doctrine of parliamentary sovereignty, the courts have made use of their power of judicial review to constrain ministers and other public figures. The passage of two Acts – the European Communities Act in 1972 and the Human Rights Act in 1998 – created the conditions for judges to determine the outcome of public policy in a way not previously possible. The passage of devolution legislation, creating elected bodies in Scotland, Wales and Northern Ireland, has also enlarged the scope for judicial activity, with potentially significant constitutional and political implications. The Constitutional Reform Act 2005 resulted in the creation of a Supreme Court. The greater willingness of, and opportunity for, the courts to concern themselves with the determination of public policy has been welcomed by some jurists and politicians while alarming others, who are fearful that policy-making power may slip from elected politicians to unelected judges. The courts are having to meet the challenge of a new juridical dimension to the British constitution while coping – not always successfully – with the demands of an extensive system of criminal and civil justice.

Learning Objectives

• To identify the relationship of the judicial system to other parts of the political process.
• To describe the basic structure of that system, and how it has changed in recent years as a result of a greater willingness of judges to undertake judicial review, and as a consequence of constitutional change.
• To consider demands for change because of perceived weaknesses in the system.

Quizzes

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Discussion Questions

1. The judiciary in the UK has traditionally been viewed as politically neutral. However, recent cases such as Miller (2017) and Miller (2019) suggest that judges are playing an increasing role in political disputes. Should the judiciary have a greater role in checking government power, or does this threaten parliamentary sovereignty?
2. The UK judiciary is unelected and is intended to remain independent of political influence. However, some critics argue that judges hold too much power without being directly accountable to the public. Should there be greater democratic oversight of judicial appointments, or would this undermine judicial independence?

Weblinks

HM Courts and Tribunals Service – The government agency managing courts and tribunals in England and Wales. (www.gov.uk/government/organisations/hm-courts-and-tribunals-service)

Criminal Cases Review Commission – An independent body investigating possible miscarriages of justice. (https://ccrc.gov.uk/)

Judicial Committee of the Privy Council – The highest court for UK overseas territories and some Commonwealth nations. (https://www.jcpc.uk/)

Magistrates’ Association – A professional body representing magistrates in the UK. (https://www.magistrates-association.org.uk/)

Ministry of Justice – The government department overseeing the legal system. (www.gov.uk/government/organisations/ministry-of-justice)

UK Supreme Court – The highest court in the United Kingdom. (www.supremecourt.uk)

European Court of Human Rights (ECHR) – A human rights court overseeing the European Convention on Human Rights. (www.echr.coe.int/home)

Flashcards

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