Judicial Activism

Joshua – Year 13 Student

Editor’s Note: This essay forms part of a collection of student works published in the 2020 edition of Salutaris, the GSAL Sixth Form academic journal. This is the first time that this piece of work has been published online. CPD

Amidst the chaos of Brexit, in recent years the Courts have been more visible than ever, provoking debate surrounding the role of the Courts within the United Kingdom’s system of government. On two occasions, the incumbent government has been thwarted by the Supreme Court, decried as elitist, unrepresentative and most of all undemocratic in the media and among politicians. They argue that the judiciary has overstepped its bounds and is now encroaching on the realm of politics that should be reserved for elected officials. Boris Johnson is now leading a government committed to some sort of constitutional reform to redress the balance and ensure the judiciary is not inflated further – but is this justified, or even desirable?

First, to consider the myth of judicial activism. It must be taken into account that the recent Supreme Court cases come at a seminal point in British constitutional history; unprecedented structural change should be expected to be accompanied by legal debate and advice from the Courts during the process. Furthermore, these cases on the implementation of Article 50 without consulting Parliament or prorogation of the institution altogether have evoked responses from the Courts that serve to advance the central principle that guides the constitution: parliamentary sovereignty. If judicial activism was as sinister as it is made out to be, support for the supremacy of the elected institution would not be its default position – as has proven to be the case. In addition, previous Tory reform to judicial review under Chris Grayling in 2014 has already resulted in a reduction in cases heard by the courts, down 44% between 2015 and the end of September 2019. If the courts have been enlisted to protect the principle of parliamentary sovereignty multiple times in the last four years, further limits on judicial scrutiny on the executive seem not only unnecessary but unnerving.

The constitution is already set up to be an executive’s constitution. In the words of Herbert Asquith, “the office of Prime Minister is that which the holder chooses, and is able, to make of it.” This desire for reform in the current administration emanating from Dominic Cummings and Boris Johnson should raise concern regarding the substantial implications on accountability and the rule of law that are vital for a healthy, functioning democratic nation. Restricting the capability of British citizens to hold the government to account in order to ‘streamline’ the system is not an argument that instils confidence in this regime, especially considering the substantial majority held by Johnson in Westminster. The planned “constitution, democracy and rights commission” may be an attack on just that. Applications for judicial review may frustrate governments, but ensuring the adherence of the executive to statute and preventing actions considered “ultra vires” is an indispensable aspect of the rule of law that supposedly governs our country. Inconvenience is not sufficient cause to undermine intrinsic features of UK government, and judicial review is undoubtedly included within that.

An independent judiciary is an integral fixture in the British political system that provides an essential external check on executive power. It follows that those exercising this power resent its ability to limit their actions, for the judges are beyond their reach. Therefore governmental criticism of the judiciary and the depiction of our highly-qualified judges as meddlers and political opportunists harbouring anti-democratic views must be taken with a pinch of salt. Yet it is, worryingly, the case that the current administration is in position and has expressed desire to reform to combat this fabricated rise in judicial activism, potentially to the detriment of British democracy as a whole. Looking ahead, this must be followed with substantial trepidation by those who value a government subject to the same law its citizens are obliged to obey.

Joshua 299463

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