Judicial power in the new UK constitution is on the rise. This is hardly a remarkable claim: Lord Neuberger and Lady Hale, for example, each take the expansion of judicial power to be an undeniable feature of the change over time in our governing arrangements. In a paper delivered at the ALBA Summer conference in 2016, now published on this site, I asked how and why judicial power is expanding, such that judges are increasingly able to question the merits of decisions taken by the political authorities. The expansion of judicial power that I describe in this paper, and to which the Judicial Power Project responds, presupposes and confirms the rise of a new understanding of constitutional principle and of the relative responsibilities and capacities of institutions.
The idea of judicial power is increasingly contested, as the range of views outlined in this series of ALBA papers illustrates. The traditional view has long been that judges serve the rule of law by adjudicating disputes fairly in accordance with positive law. Thus, courts should not oversee Parliament, and statutes should be given effect according to their clear intended meaning. For many lawyers and judges, this is an outdated view of the judicial function. Instead, the courts should stand between citizen and state, including Parliament, which requires courts not only to enforce existing law but also to improve it to secure justice. This new view of judicial power is grounded in a rather different conception of the rule of law and is much more sceptical about the capacities of Parliament and the executive. The responsibility of judges, on this view, is not just to uphold the law, or develop the common law incrementally, but to advance the law, including by overseeing the merits of Acts of Parliament and executive policy choices.
The force of this new understanding has turned not simply on its intellectual merits but rather on its apparent explanatory power in view of changes in UK constitutional law and practice. The changes include membership of the EU and the ECHR and the enactment of the Human Rights Act 1998. Parliament has chosen to confer new responsibilities on the courts, which has transformed the judicial function in ways both intended and unintended. The paper traces these changes, outlining Parliament’s responsibility for them, and considers also how courts have sometimes misconstrued the legislative choices in question and have relied on them to expand their role more generally.
Importantly, this new role often invites or requires judges to speculate about how political authorities may respond to the court’s judgment. The expansion of judicial power is thus sensitive to, and to some extent takes advantage of, the political reception of judicial rulings. This dynamic relationship between legislative action, court judgment, and anticipated response is problematic, I argue, for it undercuts the rule of law and weakens parliamentary democracy. But the dynamics of the expansion of judicial power also suggest, tentatively, a path to reform. The paper outlines this path. In brief, reversing the trend will involve cultural change, which Brexit and repeal of the HRA may help support but which also requires judges, lawyers, and others to affirm established constitutional principle and reject the many temptations to which modern judging gives rise.
Richard Ekins is Associate Professor of Law in the University of Oxford and Head of the Judicial Power Project.