Political Power and Democratic Control in Britain: The Democratic Audit of the United Kingdom

By Stuart Weir; David Beetham | Go to book overview

15
The Rule of Law
The limited role of the judiciary

Ultimately, this country's checks and balances are no longer here. They are in our courts and are called judicial review.

(Richard Shepherd MP, in the House of Commons, 14 December 1993)

I am quite worried about the pronouncements of some of the judges who appear to think that there is a policy role to be adopted by some of the judiciary.

(Ann Widdecombe, then Home Office Minister, in The Times, 3 November 1995)

Judicial review is the principal channel through which the actions and policies of the executive may be challenged in the courts.1 Since the late 1970s, the readiness of the courts to sit in judgment on the actions of ministers and government departments and to find against them has given the judiciary a reputation for legal, and even political, activism. The huge surge in cases of judicial review has added to this reputation. There has undoubtedly been a sea-change in judicial attitudes since the mid-1960s. Previously it was fair to say that the judiciary was about as executive-minded as the executive. The modern judiciary is now prepared to take a critical look at the legality of the acts and policies of the executive and has made major inroads into the executive's legal immunity.

It is important, however, to place the process of judicial review in perspective. Though applications for judicial review have increased dramatically to more than 3,000 a year, the courts refuse to hear more than half of the applicants, and less than a third of those who are heard obtain the remedy they seek. Further, the vast majority of these cases have little to do with the exercise of power by ministers, their departments and major public bodies. Most cases are brought by desperate people seeking to avoid deportation or to secure a decent roof over their heads from local authorities. Judicial review is also available—and is employed—against a wide variety of other public bodies, including many which are not elected, such as quangos

____________________
1
There are three legal systems in the UK, those of England and Wales, Scotland and Northern Ireland. Many of the points with which we are concerned arise equally in each of these jurisdictions, and the substantive law of judicial review is largely similar (though the Scottish system is particularly distinctive). For the sake of simplicity, we use the term 'British' in our scrutiny of judicial review. For consideration of the different systems in Northern Ireland and Scotland, see further Hadfield 1995 (especially Chapters 10, 11 and the Appendix).

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