‘The British judiciary has become increasingly politicised.’ Discuss.

Judicial decisions influencing British politics has, if anything, been thrust into the awareness of the public recently. One must only think of the increased importance of Human Rights in English law under the Human Rights Act, which has given the judiciary more direct influence over political decisions. Last year too, the Daily Mail made headlines when it referred to the High Court as “Enemies of the People”, when it required the government to pass through Parliament an Act allowing it to initiate the British exit from the European Union. The role of the European Court of Justice, as opposed to the British judiciary, has also been politicised, being one of Theresa May’s red lines in the Brexit negotiations. It is thus correct to say then that the judiciary affects politics – very much so. Yet it is entirely different to claim that they are acting in a politicised way, or actively seeking to play a role in politics. To suggest so, and this has been a criticism levelled by many including the Cambridge legal expert Mark Elliott at the Mail, suggests a strong level of constitutional illiteracy.

The role judges play and have always played politically, is one of oversight. They are the guardians of the constitution, ensuring that politicians act within their power. The way they do this is through so called judicial review, where an individual brings to court a claim that a government official has abused their power in some way. In that way it is possible to challenge the legality of an official’s action. It pertains to the way they have exercised their power, not whether they have made the right decision. Whether the right decision is made on its merits, on the substance of the matter, is the sphere of politics. The courts have not, so far, strayed this far. For example, in the Miller case,  the courts put aside their political persuasions and judged the case no on whether the High or Supreme Court thought that the UK should stay in the European Union, but rather whether the government has the ability to take Britain out of the EU.