“The UK judiciary is becoming increasingly politicised.” Analyse and evaluate this statement.
| Yes | No |
|---|---|
| The Constitutional Reform Act 2005 created a new Supreme Court. This created a physical separation between the judiciary and government. UK v Miller (1 & 2) - the courts are more willing to challenge the Prime Minister | The physical creation of the Supreme Court was mainly symbolic A v Home Secretary - the Supreme Court was still able to effectively rule against Parliament (took place prior to the Constitutional Reform Act 2005) |
| Under the power of judicial review, the Human Rights Act empowered senior judges to directly question Acts of Parliament. *Belmarsh Case - the court questioned the terror act in question and saw the declaration of incompatibility honoured | Judges’ powers are limited here. Although the Human Rights Act give judges the right to issue a ‘declaration of incompatibility’ where an Act of Parliament appears to have violated the ECHR, Parliament is under legal obligation to fall into line. Hirst v UK - the government derogated the declaration of incompatibility |
| Use of judicial review has brought judges into the ‘political fray’. UK v Miller (1 & 2) - the Supreme Court was brought into Brexit and to determine the powers of the Prime Minister | Whilst political review decisions garner much publicity, of all judicial review cases just 30% of decided cases resulted in a ruling against public law. Heathrow 3rd Runway and Net Zero Case - both cases resulted in a ruling supporting existing Acts of Parliament, only commenting on whether the procedures were followed |
By splitting Parliament and the Supreme Court, it makes the judiciary more independent and therefore more willing to stand up to government.
However, the power is the effectively same as seen prior the the Constitutional Reform Act 2005 - the Court of the House of Lords was already willing to go up against Parliament and make controversial decisions.
Writing a Conclusion (lesson work)
Rwanda case - could not be sure that the cases of asylum seekers would not be able to guarantee that the asylum seekers’ cases would meet UK standards, therefore making the hearings within Rwanda unlawful and the law/policy unlawful
- Summarise argument for Yes - judges have become more powerful and independent, they use this to hold the government to account, Human Rights Act 1998 + Constitutional Reform Act 2005
- Summarise argument against *No - judges have consistently acted the same and focus on holding the government to account to its own legislation and procedures
- A reason for (argument over other) Yes - judges have become more powerful due to the rights which they have gained from legislation such as the Human Rights Act 1998 and independence gained from Parliament
- Return to question - make a judgement
For 1: The Constitutional Reform Act 2005 and Human Rights Act 1998 have made judges more independent and powerful, and therefore more willing to challenge the government, making them more powerful.
Teacher written.
For 2: However, judges have held the government to account prior the the Constitutional Reform Act 2005 and have consistently focused on holding the government to account within the rule of law, as seen by the Heathrow 3rd Runway case.
For 3: This means that judges have become more political due to the rights which they have obtained, giving them more strength to hold the government to account to the rule of law. For example, Supreme Court judges have been able to limit the Prime Minister’s powers as seen in Miller 2017 where it was ruled that the Prime Minister could not overrule Parliament due to their royal perogative.
For 4: Therefore, the courts have become stronger and therefore more politicised ass their control over Government/Parliament has strengthened.