Impact of Judicial Activism on Separation of Powers in the UK: Analytical Essay

To answer this question, I shall be discussing the doctrine of judicial activism. I will also discuss the principle of separation of powers in UK and how it is affected by the growing claims of judicial activism. I will discuss the practice of separation of powers in UK and the need to strengthen the application of the principle to counter the growing claims of judicial activism.

Judicial activism is a doctrine of judicial decision making that allows judges’ personal views about public policy amidst other factors to guide their decisions. This judicial philosophy allows the judges to depart from strict adherence to judicial precedent for the advancement of social policies. Judicial activism can take the form of a judge overturning a judicial precedent (for example the supreme court departing from the position of the House of Lords as regards medical negligence in Montgomery v Lanarkshire Health Board6), interpreting the laws in ways not conveying the intentions of the legislators, invalidating the actions of other government officials, enforcing personal views of constitutional requirements and defying government policies. Judicial activism is empowered by the law which gives judges discretionary power. Critics of judicial activism posit that the doctrine usurps the power of other arms of government thereby damaging the principle of rule of law. Proponents of this doctrine argue that it is a form of judicial review and it is within the sphere of the duties of the judge to interpret the law. The judge’s use of discretion allowed under the law is usually shaped by the judge’s views informed by personal and professional experience. These views may be shaped by legal, ethical or moral philosophy. Judicial activism is suitable because it helps constrain the tendency of the majorities to act out of passion. Judicial activism has been established in United Kingdom. The perceptions of judicial activism are derived from the applications made to the court for judicial reviews. This shows the greater influence the judiciary has against other arms of government. The critics of this doctrine are of the view that the judiciary is going too far and the discretionary powers of the judges should be checked. Complaints about this doctrine have arisen in so many countries including United Kingdom. However, judicial activism has produced both reviled and celebrated decisions. It has its pros and cons just like every doctrine.

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The principle of separation of powers connotes distinction and independence of powers and responsibilities so that the power of one arm of government does not conflict with the powers of another. Separation of power suggests that the major institutions of a state should be dependent on each other but functionally independent. It also suggests that no individual should have functions that span these institutions. This concept is used to constrain corruption and abuse of power within the government by using the medium of checks and balances. The principle of separation of power is fundamental to a democratic society. Separation of powers in the United Kingdom is quite unique due to the absence of a formal written constitution. It is easy to assume that there is no separation of powers. However, it does exist but in a weak form. The three arms of government overlap and work together. The executive which consists of the crown and the government (prime minister, cabinet of ministers and the civil service) formulates and executes the government policies. The executive is accountable to the parliament who holds the legislative power and has the power to dismiss a government. The government is elected from the members of the parliament. The legislative power resides with the parliament which is composed of the Monarch, House of Lords and House of Commons. The functions of the parliament are to create and amend laws, examine the government and aid the government to make financial decisions. In the United Kingdom, the Judiciary aside interpreting the laws has an essential function of developing the law through their verdicts. The senior judicial appointments are carried out by the Crown. The Judiciary arm of the government is independent of the legislative and executive arms of government and in fact exercises control over their actions. The principle of separation of power in the United Kingdom is quite distinct. The executive exerts control over the legislature. The executive is accountable to the legislature. The judiciary and the legislature share the same powers to an extent. Despite the overlap in duties, the judiciary enjoys the independence other arms do not enjoy. The structure of separation of powers in the United Kingdom has made it easier for judicial activism to thrive in the country. Under the constitution, the judiciary is subordinate to the legislature and is only allowed to interpret the law in accordance with the intent of the parliaments. However the aspect of the powers of the judiciary to make laws through their judgment usurps the power of the legislature. This has widened the scope of the discretionary power of the court and there is no definite medium to check this power. Judicial activism justifies the power of the judiciary to readily invalidate the actions of the other arms of the government without any check. The judiciary through judicial activism interferes with the duties of the executive and legislation which amounts to usurpation of powers. However, the checks and balance that comes with judicial activism is good for a democratic society.

The strict application of the principle of separation of power is expedient for a democratic society. The United Kingdom requires the strict application of this principle to provide a check on the excesses of judicial activism. The judiciary just like other arms of the government should be subjected to checks and scrutiny of other arms of the government. The constitutional function of the judiciary to develop laws through the interpretation of the law and giving verdicts should not amount to usurpation of the powers of the legislature. The independence of the judiciary should not be a medium to unreasonably inhibit the powers of other arms of government.