Government and Politics


UK Judges

Neil McNaughton


Neil McNaughton looks at the reasons for the recent growth in political importance of the UK's senior judiciary and asks whether judges are now too powerful or not powerful enough



In recent years the UK's senior judiciary has been thrust increasingly into the political limelight. This development is in sharp contrast to the traditional status of judges which demanded that they be low profile, strictly neutral and reluctant to become involved with what were seen as purely ‘political' issues. In other words, it was formerly accepted that these senior lawyers, who are neither elected nor accountable, should confine themselves solely to issues of legal interpretation and the maintenance of the rule of law. Politics, on the other hand, was seen as outside their realm and the preserve of our elected representatives - the politicians. So, students of politics should now ask:

  • What happened to change this picture?

  • Is this a desirable state of affairs?


What has happened?

We can trace the raised profile and importance of the UK's senior judges in the political arena to a number of factors.


The Human Rights Act

Possibly the most significant development has been the introduction of the Human Rights Act (HRA), which was passed in 1998 and came into force in 2000. The HRA brought the European Convention on Human Rights into UK law. For the first time the UK had a codified set of human rights instead of the higgledy-piggledy set of statutes, common law and judicial precedents (i.e. past rulings made by judges) by which the courts operated in the past. Judges now have a much clearer set of guidelines when they are confronted with cases where citizens claim that their rights have been abused. Furthermore, the European Convention now appears to have much greater status and authority than the UK's former arrangements for the protection of rights. This is illustrated in Case study 1.


Judicial review

Since the 1990s especially, the use of judicial review has grown extensively in the UK. The courts have become increasingly willing to hear cases where a citizen or group of citizens feel they have been ‘wronged' by a public body of some kind. Judicial reviews usually arise from a claim that a public body, such as a government minister, a civil servant, a local authority or any other state organisation, has acted unlawfully. ‘Unlawfully' can mean a number of things. It can mean that a body has exceeded its legal powers, or has treated citizens unfairly or unequally, or has not followed proper procedures when making a decision. Naturally these judicial reviews are often seen as a direct challenge to government when judges uphold citizens' claims.


European law

As stated above, the European Convention on Human Rights is now part of UK law and can be enforced in many cases by the courts. But this is not the only European influence on the UK's courts. Largely since 1992, when the Maastricht Treaty was signed, UK courts can also now enforce a wide range of European Union (EU) legislation. The laws of the EU are binding on the UK and it is UK courts that enforce this principle. Sometimes the rulings on such EU law made by our courts can be embarrassing or even hostile to the British government.


The Constitutional Reform Act, 2005

The most significant provision of this Act was the introduction of the Supreme Court, which began to operate in 2009. This court replaced the practice of sending legal appeals to the 12 Law Lords, senior judges sitting in the House of Lords. Though the new Supreme Court has no additional powers to those of the Law Lords, it is now fully independent from Parliament and many commentators argue that this new ‘sense' of independence has made the court more active and challenging of government power than its predecessor.


Liberal judges

While the developments described above have been going on, Britain has also seen the appointment of a number of senior judges with distinctly liberal leanings. Among them have been Lords Woolf, Phillips, Bingham and Hoffman. These judges (all now retired from an active role) showed themselves more than willing to challenge the power of government if they felt human rights were under threat. The lead shown by these judges is still being followed today. Case study 2 demonstrates their willingness to uphold the right to privacy.


Case study 1

The Human Rights Act and national security

Judges are expected to uphold human rights. Governments, on the other hand, are expected to safeguard national security. Sometimes, governments may wish to infringe our individual rights in order to preserve national security. Examples have been: holding terrorist suspects for long periods without trial in order to interrogate them successfully, or banning public demonstrations that might threaten public order. When the two requirements come into conflict, judges and politicians may clash. The question is, therefore, who decides between the rival claims of human rights against national security? Judges or politicians?


The best-known instance occurred in December 2004 when nine terrorist suspects held in Belmarsh Prison appealed against their detention without trial. The Law Lords (predecessors of the Supreme Court) ruled that their human rights were being abused and they should be released.

The government was dismayed by the ruling and sought parliamentary approval for continuing to hold the men, but this failed. Since Belmarsh, it is well established that the government must secure the agreement of Parliament if it wishes to overrule judges on human rights issues.


Judges say...They are guardians of human rights and must carry out that function without pressure from government. However, they accept the ultimate sovereignty of Parliament.


Politicians say...It is for Parliament and government to decide where the dividing line should exist between human rights and the need to maintain national security.


What Lord Woolf (then Lord Chief Justice) said in a speech on 21 July 2004:
The judiciary has, at all times, to be vigilant to ensure that action which the State takes to protect its citizens as a whole, only interferes with the rights of the individual where that interference is in accordance with the law. That the judiciary has this responsibility is but one example of why it is so important that judicial independence is beyond doubt.


Case study 2

Privacy laws

In 2011 it was revealed that a number of public figures, including Premier League footballers, had taken out ‘super- injunctions' to prevent the media revealing secrets about their private lives. Super injunctions meant that even the names of the celebrities in question could not be revealed.


Judges say...The European Convention on Human Rights states that people's privacy should be respected, unless revelations in the media were ‘in the public interest'. It is for judges to decide in each individual case what is, or is not, ‘in the public interest'. Furthermore they are merely upholding the rule of law.


Politicians say...This does not represent the will of Parliament or the British public. Judges have ‘over- interpreted' the meaning of privacy in the Convention. Furthermore, the rulings of various judges on injunctions threaten ‘freedom of the press'.


What David Cameron, the prime minister, said in a speech on 21 April 2011:
Judges are using the European Convention on Human Rights to deliver a sort of privacy law without Parliament saying so. I think that we do need to have a proper sit back and think: is this right, is this the right thing to happen?


What ought to happen in a parliamentary democracy is that Parliament, which you elect and put there, should decide how much protection we want for individuals and how much freedom of the press and the rest of it. So I am a little uneasy about what is happening.



Reasons why judges should have power

These are the main arguments which suggest that the senior judges, who hear cases of political importance, should be powerful:

  • They play a key role, particularly when conducting judicial reviews (see above), in ensuring that government and other public bodies operate within the law and do not abuse their power.

  • They also have a role (along with Parliament) in ensuring that human rights and freedoms are upheld.

  • Judges are not politicians and are independent from politics. They are therefore in a strong position to prevent abuses of power by governments who may wish to gain political advantage.

  • They uphold the rule of law, whereby all citizens are treated equally under the law. This prevents governments and public bodies from treating people unequally for political gain.

  • While politicians are often influenced by varying public opinion, judges can operate strictly within the law and so prevent abuses of power or human rights which may take place merely to satisfy the short-term public mood.


Reasons why judges should not have so much power

Here are some views suggesting that judges are too powerful and so should be more restricted:

  • Judges are not elected and are therefore not accountable. This means they may make judgements which take no account of the national interest or public opinion. Neither Parliament nor the public has any way of calling judges to account, so their power should be controlled.

  • Judges sometimes make rulings that may prevent the government from carrying out its functions and political mandate (Case Study 1). In cases where there is a dispute between the power of government and the power of judges, it is argued that democracy demands that government should prevail.

  • When upholding EU law or the European Convention on Human Rights, UK judges are sometimes challenging the sovereignty of Parliament, a key principle of the UK constitution.

  • It has been argued by some commentators that the UK's senior judiciary is out of touch because its members come from such a narrow social background, being largely educated at private schools and Oxbridge.


Whether judges are too powerful or not powerful enough largely depends upon one's political perspective.

If you believe that such issues as human rights protection, press freedom, privacy laws or sentencing policy should be subject to public opinion and be placed under the control of elected, accountable politicians, you may come to the conclusion that judges today are exercising too much power and are too often thwarting the public interest.


But, if you take the view that our rights and freedoms, the rule of law and legal justice must be protected at all costs, you may draw the opposite conclusion and wish to see even more power placed into judges' hands. For example, you may support the idea that judges can even set aside parliamentary sovereignty by declaring some laws to be ‘unconstitutional' and a threat to our liberties, as can occur in the USA.

Neil McNaughton is an experienced politics teacher and senior examiner. He is author of several books including Edexcel Government and Politics at AS (3rd edition) (2010), published by Hodder Education.