Call this out for what it is: an executive power projectby David Allen Green / February 28, 2020 / Leave a comment
The middle class, according to some historians, is always rising. Similarly, there will be those who will always contend that the judiciary is going too far. And this belief will be held firmly, even stridently, regardless of what is—or is not—happening in the courts. It is a view that has a life of its own.
Today there are those in the United Kingdom who are energetically promoting the view that the judges are being far too active. The commentary and the critical articles write themselves, so reliant are they on tropes, stereotypes and prejudices about the courts and those who work in them. The power of judges is expanding and has to be checked. Even those who seek to counter these views (as with the cover story for this magazine last month) often buy into this narrative, justifying judicial interventionism rather than questioning whether it is actually taking place.
There is, however, little compelling evidence that the judges are in fact over-reaching themselves, either systemically or at all. Indeed, in respect of public law and the judicial reviews that regulate what public bodies can and cannot do, the last decade has been quiet. Other than the two exceptional Brexit cases associated with Gina Miller that ended up at the Supreme Court, it is difficult to think of a significant recent case where the province of public law and judicial review has been extended. And the extraordinary facts of those two cases are unlikely to be repeated.
There have been some periods where the courts have (in their preferred euphemism) “developed” the law. In the 1960s, there was a sequence of cases (Ridge v Baldwin, Padfield, Anisminic) where the judicial branch of the House of Lords first put in place the modern public law principles that are still generally followed. In the 1970s Lord Denning and other judges frequently sided with the police or against trade unions in sensitive cases. Such was the fear of politicians, back then from the left, that in 1977 there was a near-bestseller called Politics of the Judiciary.
In the 1980s, procedural changes at the High Court occasioned a rush of public law…