Through judicial reviews, individuals and groups can also have their rights upheld. In 1981, there were only 600 judicial reviews, but in the year 2007 there were around 6,000. This rise in numbers gives clear support to the fact that human rights are being protected, or at the very least, they are being challenged. Judges filter out the cases which they believe are weak or unarguable. In the 1950s, the impact of reviews were sporadic and peripheral, however they are presently much more pervasive and have a systematic influence over government policy. For example, in 1997 the government introduced the Crime Sentences Act that gave the home secretary power to set a minimum time to be served by convicted murderers. This was taken to court and judicial review, which in turn meant in 2003, the Criminal Justice Act was passed through, which enshrined the position and power of judges.
However, there are no constitutional arrangements for the protection of rights within the UK, as the UK doesn’t even technically have a constitution. The interpretation and application of the Human Rights Act has fallen upon the responsibility of the judges, and this has been criticised. It allows judges to overstep their traditional role of “interpreting the law” as it allows them to rewrite government legislation – a very powerful role which affects how the people are ruled over, and a position to which they have not been elected.
Added to this, judges have been criticised for applying an unbalanced view of individual rights that affect society negatively as a whole. For example, in 2007, the Italian killer of headmaster Philip Lawrence appealed against deporting him back to Italy after completing his prison sentence as a breech of his human rights, a case which he won. Many people would argue that he would be too dangerous to allow him to continue living in the UK, especially as he was a “proven killer”.
The recent clashes between judges and the government have come from the judiciary challenging the power of government. Some high profile cases in the 1980s (Ponting, Spycatcher) have shown how pliable some members of the judiciary were. Since the 1990s there has emerged a new breed of judge. These judges have often come into conflict with governments in the courts over issues of sentencing or through the increasing use of judicial review. In 1985, the Health and Social Security Secretary, Norman Fowler was defeated in a number of court cases in both the High Court and the Court of Appeal as the judges outlawed his new rules on social security benefits because of a lack of consultation by the department. Conservative Home Secretary, Michael Howard was deemed to have acted Ultra Vires over prison sentencing. More recently, the Blair government were challenged by the Law Lords about the detention without trial of terrorism suspects. These incidents need to be put in both special as well as historical context. Firstly, prior to the Thatcher years, the Labour government found itself at odds with judges over issues such as comprehensive schooling. More generally, the examples used above need to be placed in the bigger scheme of things in that they represent a tiny minority of the total cases heard. The sovereignty of Parliament effectively ensures that in the longer term, at least, politicians still have the upper hand.
In conclusion, the recent introduction of the Human Rights Act has afforded judges more scope to protect the civil liberties of citizens. The use of judicial review enables protection of individuals particularly against the machinery of government. There has been a significant growth in the use of judicial review in the last twenty years. Judges also have the discretion to refuse to proceed with a trial if they consider that the defendant(s) may be denied natural justice, as in the case of Matrix- Churchill in the early 1990s. Conversely, the social and educational background of judges may influence the way that they deal with individuals from groups with which they cannot empathise (such as union members or protesters). Similarly, there may be cases involving national politics, where the judge appears partial (such as in the trial of Olive Ponting). Judicial decisions have nevertheless become more liberal and less pro-state in recent years.