Judge rule: is the law taking over politics?

Saturday 18 October, 10.00 until 11.30, Pit Theatre, Barbican Legal Challenges

We can all agree that the rule of law is important. But does it have limits? Should we be wary of an increasing tendency for ‘rule by law’? Nowadays, the courts are increasingly involved in a plethora of moral, political and social arenas that in the past were beyond judicial intervention. Courts have recently decided cases about welfare reforms, hospital closures, the HS2 railway line, assisted suicide, genetics, compensation for Kenyan Mau Mau victims, and whether a hotelier can refuse a hotel bed to a gay couple. The law is now seen as a valid vehicle to challenge and punish discriminatory attitudes, in the name of equality and diversity, through the Equality Act. The Ministry of Defence and the police can now be sued over operational matters. And the law is increasingly asked to address the wrongs of history: some campaigners are seeking legal recompense for the evils of slavery centuries ago.

Many see the expanding role for law as positive because judges are trusted as neutral, independent and beyond fear or favour. This contrasts with those with a vested interest or discredited politicians, who are deemed to be more interested in getting re-elected than in doing the right thing.  The authority of politics, business, families, individuals, even the writers of history is yielding to judges. While some fear that empowering judges undermines democratic representation, others claim an expanded role for the judiciary provides necessary checks and balances to the effects of fickle and unjust majoritarianism. Some claim that an unelected body ‘above’ politics is more likely to protect minorities.

But perhaps the clash between politics and law is not so black and white. After all, the Human Rights Act and Equality Act, which have played a significant role in allowing judicial mission-creep, are legislation passed by Parliament, an institution that often appears content for the judiciary to play a greater role. Regardless, the upshot is that a great many grievances - political, moral, personal or historical - can now be resolved by applying the rule of law.

Does this mean justice is being stretched beyond its proper remit? Are judges taking decisions they are ill-equipped to make, with some areas of decision making - from public health to anti-social behaviour, from moral dilemmas to matters of conscience - best left to the arenas of ethics, politics or individual choice? Should we trust ‘blind justice’ rather than ideological politicians? Should we welcome judges’ wisdom in arbitrating over more areas of life and difficult subjects, or should we be wary of the politicisation of the law and ‘judicial activism’? Does the law have limits? If so, where should these limits be drawn and by whom?

Watch the debate

Listen to the debate:

Jon Holbrook
barrister; writer on legal issues; regular contributor to spiked

Professor Gavin Phillipson
Professor of Law and Deputy Head of School, Durham Law School

Anthony Speaight QC
QC; executive committee member, Society of Conservative Lawyers

Emily Thornberry
MP for Islington South and Finsbury and shadow attorney general

Helen Reece
reader in law, LSE

Produced by
Jon Holbrook barrister; writer on legal issues; regular contributor to spiked
Recommended readings
A judicial coup d'etat in Britain

In a democracy, parliament, not the judiciary, must have the last word on policy

Jon Holbrook, spiked, 31 July 2013

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