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‘Lord Howard, the former Tory leader, stated in a Radio 4 programme: “The power of the judges, as opposed to the power of elected politicians, has increased, is increasing and ought to be diminished. More and more decisions are being made by unelected, unaccountable judges, instead of accountable, elected Members of Parliament who have to answer to the electorate for what has happened”.
These statements evidence a failure to understand the role of the judiciary.’ (Lord Phillips, ‘Judicial Independence and Accountability: A View from the Supreme Court’, Constitution Unit Lecture, 8 February 2011, p .16).
In the light of this statement, critically assess the constitutional role of the judiciary.
This centres on the role of judges within the constitution and you need to think about what area of judicial decisions Lord Howard particularly had in mind.
- Define and explain the constitutional role and functions of the judiciary. Compare and contrast it with the role and functions of MPs.
- Judges are unelected and not accountable to the electorate. What are the positives and negatives of that? Discuss the importance of judicial independence.
- What power do judges have when deciding cases? What are the limits on judicial power? Consider the separation of powers, judicial deference and judicial activism (see also Chapter 7). How do the courts approach issues that are politically sensitive? Where is the dividing line between the province of the courts and of parliament on policy issues? Find cases to support your argument. Think about the judicial review process where judges are reviewing decision-making by public bodies (this would be a good question to revisit when you’ve studied judicial review).
- Should judicial power be reduced? What are the issues with that?
- Is Lord Howard’s an accurate view?