- JUDICAL REVIEW
- V. Dicey wrote that the “twin pillars” of the British constitution are parliamentary sovereignty and the rule of law.
- The rule of law stresses the importance of law over arbitrary power.
- The rule of law requires decisions and actions to have a clear legal basis, and for laws to be applied to everyone equally, from public officials to private citizens.
- Government ministers and other public officials may become frustrated when judges declare their actions or decisions to be illegal, procedurally improper, or irrational, but the rule of law requires a legal basis for their actions.
- Ministers can always ask Parliament to grant them the powers that judges have found them to lack. Parliament can soon by-pass a judge’s decision by simply passing a new law.
- JUDICIAL RESTRAINT
- While the scope of judicial review has expanded, judges still cannot be proactive; they have to wait for cases to be brought before them.
- And while critics fear that the judiciary is overstepping its constitutional boundaries, there is still substantial evidence of judicial restraint – where judges are reluctant to decide issues that are best left to elected representatives.
- In the 2014 case R (Nicklinson) v Ministry of Justice, the Supreme Court was asked to determine whether the Suicide Act (1961), which makes assisted suicide illegal, is incompatible with the Article 8 right to respect for private and family life.
- While a majority of five justices held that the court did have the power to issue a declaration of incompatibility on this issue, only two argued in favour of doing so, and four justices were vocal in their view that such a significant moral question was best left to elected representatives, who could debate the issue in Parliament.
- CONSTITUTIONAL CHANGES
- Recent constitutional reforms arguably enable and encourage greater judicial activism.
- As the ECHR is often quite vaguely written, liberal judges have been able to take an increasingly broad view of the rights that are protected.
- 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 and that the HRA requires judges to answer questions that are more political than legal.
Many questions that were once ‘non-justiciable’, because they raised policy questions that were best left to Parliament, have become ‘justiciable’ because of their human rights implications. Traditionally, Ministers were accountable to Parliament for the effectiveness of their policies, and to the judiciary for the lawfulness of their actions. But critics argue that the HRA blurs these lines, by allowing judges to review the ‘proportionality’ of decisions and actions taken by public authorities that impact human rights.