- JUDICIAL REVIEW
- The rapid growth of judicial review can hold up the work of democratically elected representatives.
- In 1982, 685 applications for judicial review, in 2013, there were over 15,700 applications.
- Critics argue that judicial review can unnecessarily hold up our elected government, preventing ministers from enacting manifesto policies that they have a mandate to pursue. Many ‘Leave’ voters were critical when judicial review was sought of the Conservative Government’s plans to use royal prerogative powers to trigger Article 50 of the Treaty on European Union and begin exit negotiations without an Act of Parliament.
- They argued that the application for judicial review was simply an attempt to frustrate the outcome of the referendum. Others argued that the referendum result did not change the fact that minsters still had to act with their legal powers.
- JUDICAL ACTIVISM
- Critics of the Human Right Act (1998) argue that it encourages judicial activism, where decisions are influenced more by the personal views of judges than by existing laws.
- They argue that the ECHR is often quite vaguely written – liberal judges have been able to take an increasingly broad view of the rights that are protected.
- Traditionally, ‘jurisdiction’ was interpreted to mean ‘within the state’s territory’. However, in recent cases like Smith v Ministry of Defence (2013) and Hassan v UK (2014), the UK Supreme Court and ECtHR have interpreted ‘jurisdiction’ to apply to British soldiers fighting overseas. Critics argue that it is wrong for ‘activist judges’ to expand the ECHR in ways that the initial signatories never intended.
- Secondly, critics argue that the HRA requires judges to answer questions that are more political than legal.
- As judges are not robots, it is inevitable that personal views will therefore influence final decisions, and, as judges are unelected and unaccountable, it is far better to leave the question of what is, or is not, proportional to Parliament.
- ECHR
- Under Article 46 of the European Convention on Human Rights (ECHR), the UK government is required to “abide by the final judgement” of the European Court of Human Rights (ECtHR), which was established in 1959 to help uphold the treaty.
- Controversially, the ECtHR has repeatedly ruled that the UK’s blanket ban on prisoners voting is a breach of their human rights.
- In February 2011, the House of Commons passed a motion against prisoners gaining the vote by 234 to 22.
Some MPs questioned whether the almost unanimous view of elected representatives should be questioned by unelected and unaccountable judges from across Europe.