What are the roles and responsibilities of the judiciary in the English Legal System?

This article identifies the role of the judiciary as intrinsically linked to its responsibilities. If the responsibility for checking the actions of our political institutions lies with the judiciary as an unbiased and independent arm of state, then its role will extend to a higher standard of judicial review. If this responsibility lies elsewhere, and the responsibility of the judiciary is more limited to cases of grave breaches of error, then it is not the role of the judiciary to scrutinise political decisions with too much intensity. This article concludes that largely due to the nature of our unwritten constitution, the current model of judicial review gives more rather than less responsibility to the courts. 

Legal systems have two main components: the making of the law, and its application. In England, the law makers are Parliament; and the bodies which apply the law Parliament makes are the Executive (government) and the judiciary (the courts). Thus; the courts have a distinct role in the application of laws created by Parliament, for example by ruling on disputes between individuals, and to some extent they have a law-making role by filling gaps in the law or clarifying ambiguities (common law). If Parliament does not like the court’s interpretation of a statute, or the common law created, it can legislate to overturn it. But how far does the role of the judiciary extend to being a check on the Executive in its application of Parliamentary laws. Are the judiciary the ultimate law-applying body? Ascertaining the role of the judiciary in this context will help us to determine by what principles should they apply such law. If the judiciary functions as a regular fall-back there would be a lighter standard of review, or if only in cases of extreme default there would be a much higher standard. Parliamentary intention must be the most important principle since they are the democratically elected body which made the law, so if the intention was to have the Executive make decisions then the judiciary should not be replacing Executive discretion. 

There are two main theories with regards judicial oversight of executive action, propounded by Harlow and Rawlings in 1997: the “Red and Green Light” theories.  The Red Light theory is that the court’s function is to secure good administration and act as a control on government.  Professor Griffiths has noted the recent fusion of government and Parliament, with government dominating parliament’s legislative function and content. This has led to descriptions of the UK as an ‘elected dictatorship’: ie that true political power is with the executive who dominate a legally unchecked Parliament – thus the need for judicial checks and balances. Sedley LJ and Lord Nolan have urged a more prominent role for the judiciary at the expense of the executive, because of this perceived increasing failure of parliament to control the executive. The Green Light theory conversely encourages earlier recourse to the political process – putting the focus on the legislative and administrative stages. Whereas red light theorists favour external, retrospective, judicial controls over decision-making, green-light theorists favour internal, prospective, political controls.

It is apparent that our legal system has been leaning towards a Red Light approach. This can be seen from: a) the increase in the scope of judicial review, namely in the number of bodies and powers overseen by the courts (see for example ex p Datafin); b) the increase in intensity of review – notably in human rights cases, reducing the distinction between review and appeal (see for example ex p Brind); and c) the adoption of the ground of proportionality, at times used as a test of reasonableness or as a test in its own right (see for example Daly). The executive’s accountability to the legislature has become more of an accountability to the judiciary; judges are increasingly filling the gap in democratic oversight of the executive branch. 

In conclusion there are two points to note: the benefits of such increased judicial activism (given the judiciary is not elected) depends in part on the quality of the judiciary – who they are and how they are appointed. The second point is that without a written constitution entrenching specified roles to each branch of State, the judiciary must be careful not to overstep the line between lawfulness and procedural fairness, and policy and value judgments in fact-sensitive cases on the other. 

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