Introduction
Judicial review serves as a cornerstone of the UK constitutional framework, empowering the judiciary to scrutinise the legality of executive actions and ensure adherence to the rule of law. The statement under discussion posits that the judiciary’s authority in judicial review stems from its constitutional duty to interpret and apply legal rules independently, even when such decisions carry significant social, economic, or political implications. This essay critically examines the extent to which this perspective holds true in the context of UK case law and academic commentary. It explores the judiciary’s role in maintaining constitutional balance, the challenges posed by controversial decisions, and the limits of judicial independence when faced with political pressures. By drawing on pivotal cases and scholarly insights, this piece argues that while the judiciary’s duty to “say what the law is” underpins its power, the practical exercise of this duty is often constrained by external influences and the need to navigate contentious issues with caution.
The Constitutional Duty to Interpret the Law
The foundational role of the judiciary in judicial review is rooted in the principle of the rule of law, which demands that all branches of government operate within legal boundaries. As articulated by Lord Bingham, one of the judiciary’s primary duties is to ensure that executive power is exercised lawfully, a principle vividly demonstrated in landmark cases (Bingham, 2010). In R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5, the Supreme Court asserted its authority to determine the legal limits of executive power. The court ruled that the government could not trigger Article 50 of the Treaty on European Union without parliamentary approval, emphasising that even matters of profound political significance—such as Brexit—must comply with constitutional law. This decision reflects the judiciary’s commitment to interpreting the law objectively, regardless of external ramifications.
Academic commentary supports this view, with scholars like Jowell (2000) arguing that judicial review is an essential mechanism for upholding constitutional principles. Jowell contends that the judiciary’s independence allows it to act as a check on executive overreach, ensuring that legal questions are not sidelined merely because they are politically charged. However, while the judiciary’s duty to “say what the law is” is clear in theory, its application often raises questions about the balance between legal interpretation and political sensitivity, as explored in subsequent sections.
Judicial Independence and Controversial Implications
The statement suggests that legal questions remain relevant irrespective of their social, economic, or political consequences. Indeed, UK case law provides numerous examples of the judiciary engaging with contentious issues, even at the risk of public or governmental backlash. In R (Evans) v Attorney General [2015] UKSC 21, the Supreme Court overturned the Attorney General’s veto on the release of correspondence between Prince Charles and government ministers. This decision, while legally grounded in the interpretation of the Freedom of Information Act 2000, carried significant political implications by challenging executive attempts to shield sensitive information. The court’s ruling reaffirms the notion that legal relevance supersedes political convenience.
Nevertheless, the exercise of judicial review in such cases is not without criticism. Some academic observers, including Elliott (2016), caution that decisions with far-reaching implications can strain the relationship between the judiciary and other branches of government. Elliott argues that while the judiciary must remain independent, overly assertive rulings risk accusations of overstepping into political territory, thereby undermining public confidence in the courts. This perspective highlights a tension inherent in the statement: while the duty to interpret the law is paramount, the controversial fallout from such interpretations can complicate the judiciary’s role.
Constraints on Judicial Power in Practice
Despite the theoretical clarity of the judiciary’s duty, practical constraints often limit the exercise of judicial review. One significant limitation is the doctrine of deference, whereby courts may shy away from challenging executive decisions on matters deemed to fall within governmental expertise, such as national security or economic policy. In R (Begum) v Secretary of State for the Home Department [2021] UKSC 7, the Supreme Court upheld the Home Secretary’s decision to revoke Shamima Begum’s British citizenship on national security grounds. While acknowledging the legal issues at stake, the court deferred to the executive’s assessment of risk, illustrating how controversial political and social implications can temper judicial intervention.
Academic commentary further illuminates these constraints. Craig (2016) argues that judicial deference reflects a pragmatic recognition of the judiciary’s limited institutional competence in certain areas. While the duty to interpret the law remains central, courts must navigate a fine line between asserting legal authority and avoiding perceptions of judicial activism. This balance suggests that, contrary to the statement, the controversial implications of a legal question can indeed influence how—or whether—the judiciary chooses to engage with it.
Furthermore, political pressure and public opinion can indirectly shape judicial outcomes. Although judges are expected to remain impartial, high-profile cases often attract intense scrutiny, potentially influencing judicial caution. For instance, the political storm following the Miller case demonstrated how judicial decisions on sensitive issues can provoke accusations of bias or overreach, even when legally sound. Such dynamics underscore the challenges of exercising independent judgment in a politically charged environment.
The Broader Implications of Judicial Review
The power of judicial review, as rooted in the duty to interpret the law, has broader implications for the UK’s unwritten constitution. It serves as a vital mechanism for accountability, ensuring that executive actions do not evade legal scrutiny. Cases like R (UNISON) v Lord Chancellor [2017] UKSC 51, where the Supreme Court struck down employment tribunal fees as an unlawful barrier to access to justice, exemplify how judicial review can have significant social and economic impact while remaining grounded in legal principle. This ruling arguably aligns with the statement’s assertion that controversial implications do not diminish the legal relevance of a question.
However, the ongoing debate over the scope of judicial review—evidenced by the UK government’s recent proposals to reform the process—suggests that this power is not universally accepted as uncontroversial. Critics argue that expansive judicial review risks undermining democratic decision-making, a concern echoed by some scholars who advocate for clearer statutory limits on judicial intervention (Ekins, 2020). This tension highlights that while the judiciary’s duty to interpret the law is fundamental, its exercise remains subject to evolving political and societal expectations.
Conclusion
In conclusion, the power of judicial review in the UK is fundamentally tied to the judiciary’s constitutional duty to “say what the law is,” as reflected in key cases like Miller and UNISON. This duty mandates independent judgment, even when legal rulings carry controversial social, economic, or political consequences, supporting the essence of the statement under discussion. However, practical constraints such as judicial deference, political pressures, and public perception often temper the extent to which courts can fully exercise this independence, as seen in cases like Begum. Academic commentary reinforces the importance of judicial review while acknowledging the challenges of navigating controversial terrain. Ultimately, while the judiciary’s role in interpreting the law remains paramount, its application is inevitably shaped by the broader constitutional and political context. This balance raises critical questions about the future scope of judicial review and the ongoing need to safeguard judicial independence amidst evolving societal demands.
References
- Bingham, T. (2010) The Rule of Law. Allen Lane.
- Craig, P. (2016) Administrative Law. 8th ed. Sweet & Maxwell.
- Ekins, R. (2020) Judicial Review and the Limits of Judicial Power. Policy Exchange.
- Elliott, M. (2016) The Rule of Law and Judicial Review: Reflections on the UK Experience. Public Law, pp. 102-120.
- Jowell, J. (2000) Beyond the Rule of Law: Towards Constitutional Judicial Review. Public Law, pp. 671-683.
