I need to see for my knowledge and further information about writing a short review defining the term ‘judicial activism’. This must draw on relevant literature andfirstly set out the CONVENTIONAL understanding of this term. From there, you can review if the term itself is useful to me, i.e. in its conventional sense AND/OR if there are alternative understandings that might fit the way. Once that is done we will have a firmer basis on which to develop the proposal for the course of PhD . Please let me know about this topic in about one thousand words??

Introduction

In the UK, the concept of judicial activism is restrained by the long established constitutional doctrine of parliamentary sovereignty. The parliament is supreme and the law made by the parliament cannot be reviewed by the judiciary. The traditional approaches to judicial review seen in other countries with similar common law traditions, such as the US, where the courts can review legislation, are not seen in the UK. Justice Coke in Dr. Bonham’s case did speak about judicial review over the King’s actions and it is a fact that this case went on to become an important source for understanding the due process doctrine in the US, for instance in the celebrated Marbury v Madison case. However, it did not have the radical impact on English approaches to supremacy of primary law and the restraint on judiciary to review primary law.

Judicial Activism: Traditional Approach

Traditionally, in the UK, judicial review was seen to be in aid of the doctrine of parliamentary sovereignty. Here, the courts would apply the principle of ultra vires, in order to review executive actions that seemed to be outside the scope of the powers allowed under primary legislation. In that sense, judicial activism was seen as a support to the primary law. Therefore, the traditional approach allows judicial review over executive action as a support to parliamentary supremacy. Unlike countries like the US, where constitutional law is supreme and doctrine of ultra vires is used from the constitutional law point of view, in the UK, the doctrine is viewed from the primary law point of view. Therefore, when activism was seen, it was still in the domain of expansion of judicial review powers on the ministerial and executive action (Wright, 2015) .

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Judicial Activism: Alternative Approaches

Since the 1980s there has been a strong case made for the role of judicial activism in UK’s top courts. During this period, writers such as John Griffith wrote about ‘a period of judicial activism or intervention which began in the early 1960s and has been growing in strength ever since’ (Griffith, 1985, p. 230) . A. J. Harding stressed the importance of ‘the winds of the new judicial activism’, while discussing the evolving nature of public duties (Harding, 1989, p. 278) .

As early as 1985, Lord Roskill observed: ‘Today it is perhaps commonplace to observe that as a result of a series of judicial decisions since about 1950 … there has been a dramatic and indeed a radical change … That change has been described — by no means critically — as an upsurge of judicial activism’ (Council of Civil Service Unions v. Minister for Civil Service) . This is particularly important, because here a senior and respected member of the judiciary made a reference to a controversial topic (judicial activism) in a reported judgement.

Recently, another commentator has written extensively on the state of judicial review and activism within the UK Supreme Court (Dickson, 2015) . She writes that there are four kinds of behavior that show judicial activism. These behaviors are: (a) departing from precedents; (b) interpreting legislation in unexpected ways; (c) defying the government’s social, economic and foreign policies; and (d) developing the common law (Dickson, 2015) .

In the last few years since the Supreme Court was established, the court has actually departed from established precedents on a number of occasions. Thus, in R (Cooper) v Secretary of State for Work and Pensions, the Supreme Court impliedly disapproved of the earlier decision of the House of Lords in Mulvey v Secretary of State for Social Security. The Supreme Court ruled that deductions could not continue to be made from a person's social security benefits after a debt relief or bankruptcy order had been made against the debtor. This was opposed to the ruling of the House of Lords. Then again in Smith v Ministry of Defence, a seven-judge Supreme Court unanimously held that British soldiers serving abroad were entitled to a protection under the ECHR rights and it is the responsibility of the Ministry of Defence to ensure that these rights are safeguarded. The judgement of the Supreme Court by 6 to 3 majority was contrary to the Coirt’s own previous decision in R (Smith) v Oxfordshire Assistant Deputy Coroner. The reason for the difference in the Court’s approach in such a short span of time was due to the ruling of the European Court of Human Rights in Al Skeini v UK, where the European Court ruled on the extra-territorial applicability of the ECHR. Another important case is Assange v The Swedish Prosecution Authority, in which the majority of the Supreme Court bench favoured an internationalist interpretation which would ensure that the UK was not in breach of its international obligations under the Framework Decision on European Arrest Warrants taken by the Council of the EU on 13 June 2002.

Judicial activism in recent times has also been seen in some of the immigration cases that have come up before the courts since the immigration rules became more restrictive. For instance, in ZH (Tanzania) v Secretary of State for the Home Department, the Supreme Court allowed an illegal immigrant to remain in the UK by applying the ECHR, article 8 (right to family life). The court found that because the immigrant was a mother to a UK born child, asking her to leave the UK would disproportionately interfere with her right to respect for her family life under Article 8 of the ECHR. This despite the Secretary of State’s order of deportation against the woman.

Bibliography

    1. Griffith, J. (1985). The Politics of the Judiciary . London: Fontana.
    2. Harding, A. J. (1989). Public Duties and Public Law. Oxford: Oxford University Press.
    3. Council of Civil Service Unions v. Minister for Civil Service, (1985) 1 A.C. 374.
    4. Dickson, B. (2015). Activism and Restraint within the UK Supreme Court. EJoCLI, 21(1).
    5. Wright, T. (2015). The Politics of Accountability. In M. Elliott, & D. Feldman, The Cambridge Companion to Public Law (pp. 96-115). Cambridge: Cambridge University Press.

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