Why and to what extent have the Judiciary and the government come into conflict in recent years?

There has, in recent years, been a number of conflicts between judiciary and government. This has been due to three factors; the increasing liberalism of the judges (and perhaps of the public also), causing them to place emphasis on civil liberties and human rights and challenge government when it has been seen to threaten them (culture change), the creation of the Human Rights Act may have strengthened the tools available to the judiciary to challenge government, and a possible trend toward greater authoritarianism by government (although government would tend to argue that it has faced peculiar challenges, notable that of terrorism, which has, in turn, necessitated the creation of legislation that has caused problems with the judiciary).

Under the old ‘Westminster model’ of government, the judiciary knew its place. It was subordinate to the power of Parliament and particularly, the executive. In recent years a number of developments have led to growing judicial confidence and activism. This has sometimes brought them into conflict with the government. This conflict is often based on different constitutional preferences. A number of ministers have felt that parliamentary sovereignty is coming under threat. This sovereignty is based, in their eyes, on the responsibility they have to balance rights and responsibilities, and the direct line of legitimacy they possess in relation to the public. Judges in turn have become more robust. They suggest, much more forcefully now, that liberal democracy is (at least the liberal part) about limited government and checks and balances. Their role therefore is to protect civil liberties and to challenge governments when they threaten them, even if this goes against the will of the majority.

Traditionally the rule of law, one of the centrepieces of the UK constitution, was intended to act as a check on government. But in the UK constitution parliamentary sovereignty has, in practice, been a higher principle. That is, it is left up to parliament to create law – it can make, unmake and amend any law. It seemed to be an article of faith that parliament would never create laws that threatened civil liberties. Vernon Bogdanor suggests that it never occurred to commentators on the constitution such as Dicey that governments in the UK might do such a thing.

This faith in parliament and in the ‘decency’ of government is seen as being rather quaint now. Before, during and after the 2nd World War though there was a sense that the British system prevented the abuses to civil liberties that took place in Germany and elsewhere. Much of this faith could be put down to a superiority complex – the sense that the British system was the envy of the world, and that others sought to copy it. Gradually though throughout the post war period this faith dissipated.

There was a gradual culture shift among the judiciary. They became rather more liberal in outlook, likely to see rights as being absolute and unconditional, and to view themselves as being an important check on the dominance of the executive. There was a culture shift in the country also. People became much more willing to challenge public authority.

This latter change has led to an increased number of cases being brought to judicial review (there were fewer than 600 in 1981, compared to more than 6,000 in 2007). Judicial review takes place when public authorities are deemed to have acted beyond the powers given them by a piece of legislation (they have acted ultra vires in the Latin jargon). Recent cases involve the education secretary, Michael Gove, who was found by a judge to have acted unlawfully in failing to consult local authorities over the decision to scrap the ‘Building Schools for the Future’ programme. Another case involved the unlawful closure of local libraries (in Gloucestershire). Gloucestershire County Council was found by a judge to have breached equality rules (the effect of closing libraries would, in his judgement, have had a disproportionate effect on vulnerable groups in the area).

The proliferation of these cases has potential to cause conflict with the government. Perhaps, though, one of the main reasons for conflict has been due to legislation brought in by the government itself. The Human Rights Act (HRA, 1998) was created to bring UK law in line with the European Convention on Human Rights. It was a major constitutional reform in that it marked a shift to a codified set of individual rights (the rights were already there, but they had to be exercised in the Strasbourg court, which was costly and time consuming). In doing so it was a step toward giving the judiciary greater powers to protect civil liberties and check executive power.

A number of cases have been brought which demonstrate the potential for the HRA to generate conflict between judiciary and government. Examples include: the decision not to deport the murderer of headteacher Philip Lawrence – the ‘right to family life’ and the existence of a family in the UK meant that he was allowed to stay in the UK even though he is an Italian national; an Iraqi who ran over a girl, killing her, then fled the scene, was allowed after completing his sentence to remain in the UK also because he had a family here.

Perhaps the most serious cases though have involved disputes over suspected terrorists – the Abu Qatada case for example, is relevant because of the claim of ‘freedom from torture’ and ‘right to fair trial’ embedded in the act has proved a stumbling block in deporting him to Jordan. The Home Secretary is desperate to deport him. She and other government ministers have openly criticised the HRA, the ECHR and the Court of Human Rights in Strasbourg for delaying this process, and, making decisions which as they see it intrude on the sovereignty of parliament.

The previous Labour government was openly critical of decisions made by the courts on a number of issues as well, but particularly related to anti-terror legislation. Some of this legislation has been seen to breach the human rights of terror suspects – detention without trial, pre-charge detention ( 28 days now 14), rights to deportation of those considered to be promoting terror, control orders. They argued that governments have a duty to balance the rights of terror suspects with those of members of the general public (right to life – not to be blown up), whereas judges only have a very narrow remit, to consider the rights of the individual suspect.

While these are substantial areas of conflict, it could be argued that the judiciary are still subordinate to parliament and to the executive. The HRA does not give the judiciary the same degree of power as possessed by judges in the USA or Germany for instance. In these countries civil liberties and human rights are protected by constitutional documents which have a higher status than ordinary law, significantly constraining executives. If the judiciary wants to challenge a piece of legislation using the HRA in the UK it can only issue a ‘declaration of incompatibility’, which sends the legislation back to Parliament for revision. It cannot just dismiss the legislation as being in breach of the constitution. So why do ministers become so upset? Well it may partly be because of their duty to protect the public, as discussed (they are the ones in the firing line if something goes wrong, not the judges). But there may be other reasons also.

The reason why ministers become so angry is because we have not previously had a very liberal constitution. The Westminster model of parliamentary sovereignty and a strong executive has been ingrained in their habits and expectations (as it has in the expectations of the public – this is perhaps why they don’t like it when institutions other than the government make unpopular decisions and contradict the will of democratically elected ministers). Maybe the rise of the judicial activism is just a sign of how a liberal democracy with some degree of separation of powers does actually work though.

So the conflict has been based on the degree to which power should be shared, and ultimately revolves around differences of opinion about what kind of constitution we should have. A fan of a constitutional democracy would argue that ministers should just get used to judicial activism. In which case they perhaps would not be happy with judicial decisions but recognise that this is all part of a liberal democratic system. The problem is that ministers are also under pressure from various media, who claim to speak for majority opinion (ie about terrorist suspects). In liberal thought the defence of civil liberties and human rights is fought not just against a potentially tyrannical government ie autocratic dictator, but also against the ‘tyranny of the majority’ – majorities in societies can also be fairly intolerant of unpopular groups and individuals (terrorist suspects, paedophiles, rapists, homosexuals, minority ethnic groups etc etc). A liberal judiciary would argue that it is their job to stand up for these people (this is why the judiciary could never, in a liberal system, be elected by the populace – they would then become subject to pressure from these majorities). Governments, in contrast, feel the democratic pressure to express the will of the people. Hence the constant tension, particularly in periods of emergency (ie following terrorist events), when vulnerable minorities are often targeted.

3 Controversial Court cases

The hijackers

In February 2000 nine Afghan nationals hijacked a passenger plane and flew it to Stansted Airport where they were arrested after an armed siege.

Successive Home Secretaries tried to deport them but the High Court ruled in 2006 that the refusal to allow them to stay breached their human rights.

The terror suspect

Abu Qatada, the man once nicknamed Osama bin Laden’s “righthand man in Europe” was allowed to remain in Britain after a tribunal ruled that to deport him to face trial in his native Jordan would breach his human rights.

Unlawful Control Orders

“AT” is a Lybian national who was granted asylum in the UK in 2003. At that time, he was a member of the Libyan Islamic Fighting Group (LIFG), an organisation involved in armed opposition to the now-ousted Ghaddaffi regime, that was later proscribed under the Terrorism Act 2000. The Court of Appeal upheld a challenge to a control order on the basis that the person subject to the order (‘the controllee’) had not been given sufficient information about the case against him