“Reform of the judiciary has made it a powerful check on the executive.” How far do you agree with this statement?
The political function of the judiciary is to act as a check upon the executive by upholding the rule of law. The judiciary is there to prevent the arbitrary abuse of power by the government. In order to do this the judiciary must be independent of the executive or else it becomes an instrument of executive power, as in dictatorships. The history of the relationship between the executive and the judiciary in Britain is a complicated one. There have been some elements of that relationship that clearly sought to preserve judicial independence while others seemed to undermine the principle: the position of the Lord Chancellor is an obvious example. The idea that the executive should be separate from the judiciary was first mentioned by Montesquieu in Spirit of the Laws.
Reforms introduced by the Labour government after 1997 had the express intention of increasing the independence of the judiciary: abolition of the position of Lord Chancellor; creation of a Ministry of Justice; establishment of an independent judicial appointments body; the creation of the Human Rights Act. The Human Rights Act has meant that citizens can assert their rights forcefully. Cases where it has been claimed that the European Convention on Human Rights has been infringed, especially by state organisations, end up in the courts for important judgements with political significance. Furthermore, the 2005 Constitutional Reform Act made the judiciary more independent than ever before. In particular the Supreme Court, which began operations in 2009, has exercised its independence in a series of key cases in recent years. It is argued that these have increased the autonomy of the judiciary and have significantly enhanced its power to act as a check on the executive.
The dramatic increase in the number of judicial reviews suggests an increased faith in the mechanism on the part of the public. Everyone is bound by the Law, including Ministers, Public Officials and others. Public Officials should therefore use their power reasonably and not act ultra vires. This is upheld by Judicial Review, the power of the Judiciary to review and possibly overturn laws, decrees and actions of other branches of government and public bodies. There were over 11,000 cases of Judicial Review in 2014 compared with 513 in 1980. Examples of reviews include when Labour Home Secretary David Blunkett was forced to reverse a decision on not paying welfare payments to immigrants in 2003 after a judicial review successfully questioned the legality of it.