Role of the Judiciary

This lesson examines the role of the judiciary within the UK political system. Understanding the judiciary is essential for Edexcel A-Level Politics because the courts play a crucial part in upholding the rule of law, protecting individual rights, and checking the power of both Parliament and the executive. The judiciary sits alongside the legislature and the executive as one of the three branches of government.

What Is the Judiciary?

The judiciary refers to the branch of government responsible for interpreting and applying the law. Judges do not make law in the way that Parliament does; instead, they resolve disputes, determine the meaning of statutes, and ensure that government actions are lawful.

In the UK, the judiciary includes:

Magistrates' Courts (minor criminal cases and some civil matters)
Crown Courts (serious criminal cases, tried before a judge and jury)
County Courts (civil disputes such as contract and personal injury claims)
The High Court (complex civil cases, judicial review, and appeals)
The Court of Appeal (hears appeals from lower courts, divided into Civil and Criminal Divisions)
The UK Supreme Court (the highest court of appeal in the UK for civil cases and criminal cases from England, Wales, and Northern Ireland)

Key Term: The judiciary is the collective term for all judges and courts responsible for the administration of justice.

The Core Functions of the Judiciary

The judiciary performs several essential functions within the UK constitutional framework:

1. Interpreting the Law

Statutes passed by Parliament must be interpreted before they can be applied to real-world situations. Words in legislation are not always clear, and judges must determine their meaning. There are different approaches to statutory interpretation:

The literal rule — words are given their plain, ordinary meaning.
The golden rule — if the literal meaning would produce an absurd result, judges may adopt a secondary meaning.
The mischief rule — judges consider the problem (or "mischief") that Parliament intended the statute to remedy.
The purposive approach — judges interpret the law in light of the broader purpose of the legislation. This approach has become more common, particularly in cases involving human rights.

Example: In Pepper v Hart (1993), the House of Lords ruled that courts could consult Hansard (the record of parliamentary debates) to clarify the meaning of ambiguous legislation. This was a significant shift, as previously courts had been barred from considering parliamentary proceedings.

2. Applying the Law to Individual Cases

Once the law has been interpreted, judges must apply it to the facts of specific cases. This means examining the evidence, hearing arguments from both sides, and reaching a verdict or judgment.

In criminal cases, this involves deciding guilt or innocence (or directing a jury to do so) and, if the defendant is found guilty, imposing a sentence. In civil cases, judges determine liability and may award damages, injunctions, or other remedies.

The doctrine of precedent (also known as stare decisis, meaning "let the decision stand") is central to how the judiciary applies the law. Under this doctrine:

Decisions of higher courts are binding on lower courts.
Courts at the same level are generally expected to follow their own previous decisions.
The Supreme Court (formerly the House of Lords) can depart from its own previous decisions under the Practice Statement of 1966, though it does so rarely.

This creates a body of case law (also called common law) that supplements and sometimes clarifies statute law.

3. Judicial Review

Judicial review is the process by which courts examine whether a decision made by a public body (such as a government minister, a local authority, or a public agency) was lawful. It is one of the most important functions of the judiciary in the UK.

Judicial review does NOT assess whether a decision was right or wrong in policy terms — only whether the decision-maker acted within their legal powers and followed proper procedures.

The three traditional grounds for judicial review, established by Lord Diplock in the GCHQ case (1985), are:

Ground	Meaning
Illegality	The decision-maker did not have the legal power to make the decision, or misunderstood the law (acted ultra vires).
Irrationality	The decision was so unreasonable that no reasonable decision-maker could have reached it (Wednesbury unreasonableness).
Procedural impropriety	The decision-maker failed to follow a fair procedure — for example, not giving affected parties a chance to be heard.

A fourth ground — proportionality — has become increasingly important, especially in cases involving human rights under the Human Rights Act 1998. Proportionality asks whether the action taken was no more than necessary to achieve a legitimate aim.

Example: In R (on the application of Miller) v Secretary of State for Exiting the European Union (2017), the Supreme Court ruled that the government could not use prerogative powers to trigger Article 50 (beginning the process of leaving the EU) without an Act of Parliament. The government had acted ultra vires — beyond its legal authority.

4. Upholding Rights

The judiciary plays a critical role in protecting the rights of individuals against the state. Since the Human Rights Act 1998 (HRA) came into force in 2000, UK courts have been able to hear cases based on the rights set out in the European Convention on Human Rights (ECHR).

Under the HRA:

Section 3 requires courts to interpret legislation, so far as possible, in a way that is compatible with Convention rights.
Section 4 allows courts to issue a declaration of incompatibility if they find that a piece of legislation cannot be interpreted consistently with Convention rights. This does not invalidate the law but signals to Parliament that the law needs to be changed.
Section 6 makes it unlawful for any public authority (including government ministers, the police, local councils, and the courts themselves) to act in a way that is incompatible with Convention rights.

Example: In A v Secretary of State for the Home Department (2004) — commonly known as the Belmarsh case — the House of Lords ruled that the indefinite detention of foreign terror suspects under the Anti-terrorism, Crime and Security Act 2001 was incompatible with Articles 5 (right to liberty) and 14 (prohibition of discrimination) of the ECHR.

The Judiciary and the Rule of Law

The judiciary is the guardian of the rule of law — the principle that all persons, institutions, and the state are accountable to laws that are publicly promulgated, equally enforced, and independently adjudicated.

The rule of law, as formulated by A. V. Dicey, requires:

No arbitrary power — no one can be punished except for a distinct breach of law established before the ordinary courts.
Equality before the law — everyone, regardless of rank, is subject to the same legal rules.
The constitution is the result of the ordinary law — rights emerge from judicial decisions and statutes, not from an abstract constitutional document.

Without an independent judiciary willing to enforce these principles, the rule of law would be merely aspirational. Judges are the mechanism by which legal limits on state power are given practical effect.

The Judiciary and the Separation of Powers

The separation of powers is the constitutional principle that the three branches of government — the legislature (Parliament), the executive (the government), and the judiciary (the courts) — should be separate and independent, acting as checks on one another.

In the UK, the separation of powers has historically been incomplete:

Before 2009, the highest court of appeal (the Appellate Committee of the House of Lords) sat within Parliament. The Law Lords were both judges and members of the upper chamber of the legislature.
The Lord Chancellor was simultaneously a Cabinet minister (executive), Speaker of the House of Lords (legislature), and head of the judiciary.

The Constitutional Reform Act 2005 addressed these concerns by:

Creating the UK Supreme Court as a separate institution, physically and institutionally independent of Parliament (it began hearing cases in October 2009).
Transferring the role of head of the judiciary to the Lord Chief Justice.
Establishing the Judicial Appointments Commission (JAC) to select judges on merit, reducing political influence over appointments.

These reforms strengthened the separation of powers and enhanced the perceived independence and legitimacy of the judiciary.

Key Debates About the Role of the Judiciary

Is the Judiciary Too Powerful?

Arguments that judges are too powerful:

Judicial review allows unelected judges to overturn decisions made by democratically elected ministers. This raises concerns about the democratic legitimacy of the courts.
The HRA has given judges a broader toolkit to challenge government policy, leading some to argue that the judiciary has become politicised.
High-profile cases — such as Miller (2017 and 2019) — have brought judges into direct conflict with the government, leading to accusations of judicial activism.
Media attacks (e.g. the Daily Mail "Enemies of the People" headline in 2016) reflect public concern about the power of judges.

Arguments that judges are NOT too powerful:

Judges cannot strike down Acts of Parliament. The most they can do under the HRA is issue a declaration of incompatibility — which is not binding on Parliament.
Parliamentary sovereignty means Parliament can always change the law to override a judicial ruling.
Judicial review only assesses legality, not the merits of policy. Judges are ensuring that the government follows the law — not substituting their own policy preferences.
In many cases, judges actually practise judicial restraint, deferring to Parliament on politically sensitive issues (e.g. R (Nicklinson) v Ministry of Justice (2014), where the Court declined to make a declaration of incompatibility on assisted suicide).

Judicial Activism vs Judicial Restraint

	Judicial Activism	Judicial Restraint
Definition	Judges are willing to use their powers broadly, interpret legislation expansively, and rule on politically sensitive matters.	Judges defer to Parliament and the executive, interpreting legislation narrowly and avoiding political controversies.
Example	The Miller (2019) prorogation case, where the Supreme Court unanimously ruled Boris Johnson's prorogation of Parliament was unlawful.	R (Nicklinson) (2014), where the Court deferred to Parliament on assisted dying.
Support	Necessary to protect rights and the rule of law when Parliament and the executive fail to do so.	Respects the democratic mandate of elected politicians and avoids judges overstepping their role.
Criticism	May undermine democracy by allowing unelected judges to override elected decision-makers.	May leave rights unprotected if Parliament fails to act.

The Judiciary Compared: UK vs US

The UK judiciary operates very differently from the US judiciary:

Feature	UK	US
Can strike down legislation?	No — can only issue declarations of incompatibility	Yes — the Supreme Court can declare laws unconstitutional
Written constitution?	No codified constitution	Yes — the US Constitution is the supreme law
Appointment	Via the Judicial Appointments Commission (merit-based)	Presidential nomination, Senate confirmation (highly politicised)
Politicisation	Judges are expected to be politically neutral	Appointments are openly partisan (e.g. liberal/conservative justices)
Number of Supreme Court justices	12	9

The US Supreme Court is far more powerful in constitutional terms because it can strike down legislation that violates the Constitution. The UK Supreme Court, operating under parliamentary sovereignty, does not have this power.

Key Terms

Term	Definition
Judiciary	The branch of government that interprets and applies the law.
Judicial review	The process by which courts assess whether a public body's decision was lawful.
Ultra vires	Acting beyond one's legal powers — a ground for judicial review.
Precedent	The principle that decisions of higher courts are binding on lower courts.
Rule of law	The principle that all persons and institutions are subject to and accountable under the law.
Separation of powers	The constitutional principle that the legislature, executive, and judiciary should be independent.
Declaration of incompatibility	A court's formal statement that a law is incompatible with the ECHR — it does not invalidate the law.
Judicial activism	When judges interpret the law broadly and are willing to rule on politically sensitive issues.
Judicial restraint	When judges defer to Parliament and interpret the law narrowly, avoiding political controversies.

Exam-Style Evaluation

"The judiciary has become too powerful in UK politics." Evaluate this statement.

In favour:

Judicial review allows unelected judges to check the elected executive.
The HRA has expanded the scope of judicial intervention.
High-profile rulings (Miller I and II, Belmarsh) show judges ruling on deeply political matters.

Against:

Judges cannot strike down legislation — parliamentary sovereignty is preserved.
Parliament can override judicial rulings by changing the law.
Judges review legality, not policy merits.
Many cases show judicial restraint (Nicklinson).

Balanced conclusion: The judiciary has become more visible and more active since the HRA and the creation of the Supreme Court, but its power remains fundamentally constrained by parliamentary sovereignty. The tension between judicial independence and democratic accountability is an ongoing feature of the UK constitution, not a crisis.

Summary

The judiciary interprets and applies the law, conducts judicial review, and upholds individual rights.
Judicial review is a key mechanism for holding the executive to account.
The HRA 1998 expanded the judiciary's role in rights protection.
The Constitutional Reform Act 2005 strengthened the separation of powers by creating the Supreme Court and the JAC.
The debate between judicial activism and judicial restraint is central to understanding the judiciary's role in UK politics.
Unlike the US Supreme Court, the UK Supreme Court cannot strike down Acts of Parliament.

This content is aligned with the Edexcel A-Level Politics specification, Component 2: UK Government, Topic 5 — The Supreme Court and Rights.