"Political" decisions by the courts are nothing new. As part of the "checks and balances" in our division of state power, judges are not only permitted but positively bound to make political decisions. When judges intervene in the activities of government to ensure that ministers do not exceed the powers entrusted to them by Parliament they act as the servants, not the usurpers, of democracy. Parliament is the elected representative of the people and the laws its makes bind government ministers just as they bind everyone else.
It is particularly important to be clear about these constitutional fundamentals when the government of the day evinces scant regard for the law. The Major administration's attitude towards legality lurches from cynical opportunism (when foreigners won't buy our beef) to outright contempt (in the face of censure from the European Court of Human Rights). There is no written constitutional guarantee of fundamental human rights in the United Kingdom. The only thing that stands between the individual and oppression in the name of crude majoritarianism is the law, as applied and developed by the judges.
Department of Law
University of NottinghamReuse content