The judicial dimension in British politics

West European Politics

Volumn 21, Issue 1, 1998, Pages 148-166

  Johnson, Nevil ^a  

^a NUFFIELD COLLEGE   (United Kingdom)

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EID: 8744307507     PISSN: 01402382     EISSN: None     Source Type: Journal    
DOI: 10.1080/01402389808425236     Document Type: Article

References (29)

1. Entick v Carringlon (1765) 19 State Trials 1030 laid down the principle that general warrants could not be used to justify searches or seizure of property.
2. It should be remembered, however, that the common law was never blindly prejudiced in favour of private property rights. In the field of freedom of contract, for example, the courts steadily imposed restraints on absolute freedom of contract in the course of the eighteenth and nineteenth centuries. See P.F. Atiyah, The Rise and Fall of Freedom of Contract (Oxford: OUP 1979). Furthermore, even Dicey complained of the way in which the common law judges went along with what he saw as a harmful collectivism driven forward by Liberal social-reform measures: see A. V. Dicey, Lectures on the Relation between Law and Public Opinion in England during the 19th Century (London: Macmillan 1905).
3. In the 1930s socialists like Laski and Cripps openly talked of the need for an enabling act to override judicial objections to socialisation measures and of replacing reactionary judges. A far more benevolent critique of the social bias of the judiciary is offered years later by J.A.G.Griffith, The Politics of the Judiciary (London: Fontana 1977).
4. Only 20 years ago a Labour minister (Shirley Williams) presented amending legislation to Parliament in order to override the effects of the decision in Secretary of State for Education and Science v. Tameside Metropolitan Borough [1975], 2 WLR 641 which was at odds with her preference for comprehensive schooling. It seems doubtful whether today any Government would act so quickly and decisively to assert the supremacy of the Crown's ministers and Parliament on a major policy issue, though there are some recent examples of Government legislative action to reverse court decisions such as one on the payment of social security benefits to asylum seekers.
5. For valuable comments on this phase of judicial review and on Lord Reid's contribution in particular see J.A.G.Griffith, 'Judges and the Constitution, in Law, Society and Economy', in R.Rawlings (ed.) Centenary Essays for the L.S.E. 1895-1995 (Oxford: OUP 1997).
6. There can be no doubt that the changes made in employment law from 1980 onwards have had a profound influence on attitudes towards legally enforceable frameworks of social regulation. Such methods have gained much wider acceptance than they used to enjoy, and in employment disputes industrial tribunals now play a large part in resolving disputes, with some contribution from the courts on points of law.
7. The figures quoted are taken from the Annual Reports of Judicial Statistics issued by the Lord Chancellor's Department. They must, however, be treated with great caution. The number of cases in which judicial review is actually granted remains very small. In 1993 it appears to have been 133 in civil matters and 127 in criminal cases. The statistics understandably throw no light on the quantitative aspects of the successful applications for review and they are complicated by the fact that many applications simply fall by the wayside and are abandoned for one reason or another. For detailed analysis of the procedures involved see [1992] Public Law 102.
8. In Mv. Home Office [1993] 3 All ER 537 (HL) the judges concluded that a minister could be in contempt of court. This followed an executive decision to go ahead with a deportation in breach of assurances given to the court.
9. R v. Secretary of State for Foreign and Commonwealth Affairs ex parte World Development Movement Ltd [1995] 1 WLR 386.
10. [1993] AC 543.
11. Bromley LBC v. Greater London Council [1983] 1 AC 768. Lord Denning's judgement was subsequently upheld by the Law Lords.
12. The process of subjecting the police to much closer checks on how they proceed owes, however, more to legislation than to judicial decisions, e.g. the Police and Criminal Evidence Act 1984.
13. One of the best known and more influential of these constitutional reform groups has been Charter 88. This was founded in 1988 and has campaigned extensively for a 'modernised' constitution in tune with contemporary ideas of democracy. The protagonists of such an approach rarely take account of the tensions between the advocacy of more democracy on the one hand and an emphasis on formal rights and their enforcement through the courts on the other.
14. Among relevant articles or lectures of the judges mentioned are Sir H.Woolf, 'Judicial Review: a possible programme for reform' [1992] Public Law 221; Sir John Laws, 'Judicial Remedies and the Constitution' [1994] 57 MLR 213; Sir Stephen Sedley, 'Human Rights: a Twenty-First Century Agenda' [1995] Public Law 386. For a robust rebuttal of such judicial arguments tending to place the courts above Parliament see Griffith, in Rawlings (note 5).
15. Sir Leslie (now Lord) Scarman, English Law: the New Dimension (London: Stevens 1974).
16. The report on the conduct of Mr Profumo was published as Lord Denning's Report, Cmnd 2152, 1963.
17. Lord Justice Scarman's report was published as The Brixton Disorders 10-12 April 1981, Cmnd 8427.
18. Report of the Inquiry into the Export of Defence Equipment and Dual-Use Goods to Iraq and Related Prosecutions, presented to the House of Commons and published by HMSO, Feb. 1996 (5 Vois).
19. Av. Secretary of State for Transport, ex p. Factortame Ltd. (No.2) [1991] 1 AC 603.
20. The Home Office made a major contribution to drafting the Convention. Certainly in 1950 nobody in official circles in Britain ever dreamt of the prospect that the Convention would be used in litigation to plead the rights of transvestites or to challenge the validity of courtsmartial. Remarkably there is no way of amending the Convention and no means of questioning the court's judgements other than by refusing to pay attention to them.
21. Such statistics as are available from the ECHR indicate that several other countries, e.g. Sweden, the Netherlands, Italy and France also contribute significantly to the number of successful appeals to it. Source: European Court of Human Rights: Survey of Activities 1992 and 1993.
22. Whether such a sop to parliamentary sovereignty will be worth much in practice appears to be doubtful. Parliament could certainly reserve its ultimate authority in relation to the effects of a purely domestic bill of rights, but it is more doubtful whether this is practicable so long as Britain remains a signatory of the European Convention. It is more likely that even after incorporation of the Convention into British law appeals to Strasbourg will have to remain possible and that some litigants will take advantage of that facility.
23. The banning of trade unions at GCHQ (General Communications Headquarters) in Cheltenham in 1984 (revoked by the new government in 1997) was one example of a political decision which did lead directly to legal challenge before the British courts and ultimately in Strasbourg too. On this occasion the Government's action was upheld as being within its powers to act on grounds of national security: R v. Secretary of State for Foreign and Commonwealth Affairs ex p. Council of Civil Service Unions [1985] IRLR 28.
24. Comparisons with the past must, however, always be qualified. The Wilson government 1966-70 had many ambitious legislative projects, and so had the Heath government 1970-74. But both suffered from notable setbacks, whereas Mrs Thatcher on the whole, did not.
25. The establishment of over 100 agencies stems from the report entitled Improving Management in Government: The Next Steps (HMSO 1988) which was adopted by the Thatcher government as the blueprint for a far-reaching programme of administrative deconcentration.
26. The Crown Prosecuting Service was established in 1986. It has been beset by many problems, some of them stemming from British laws of evidence, some from uneasy relations with the police authorities. As a result its operation continues to prompt critical comment.
27. The Police Complaints Authority was established under the Police and Criminal Evidence Act 1984 and replaced the Police Complaints Board set up in 1976.
28. For comments on the German predilection for judicial rulings and enforceable conclusions see Nevil Johnson, 'Law as Articulation of the State in Western Germany', West European Politics 1/2 (May 1978) pp.177-92.
29. During the 50 years of a devolved government and legislature in Northern Ireland there was hardly any recourse to such judicial remedies as might have been available against the abuse of power by the authorities there.