Douglas Carswell's Blog

Judicial activism cannot be ignored

Every time I blog about judicial activism - as I did this morning - I get one or two emails telling me that judges are just doing their job.  Apparently they're simply applying the law that MPs make etc etc.  And if MPs don't like what judges decide, they should jolly well change the law, blah blah (See some of the comments on the blog below).

That might be what ought to happen.  But I'm afraid it's simply not true to claim that judges merely apply the law MPs make. 

Even before the European Convention on Human Rights was incorporated into UK law, there are instances of judges specifically setting aside what the law actually said in favour of what they felt it should be. 

See, for example, the 1996 case of R v Secretary of State for the Home Department, ex parte Fayed and another.  Despite the 1981 Nationality Act stating that “The Home Secretary’s decision shall not be subject to review in or challenge by any court whatever”, the judge not only over ruled the law laid by Parliament, but appeared to claim authority over the legislature to do so.

 Oh.  And for any of the “there-no-such-thing-as-judicial-activism” readers out there, who established the doctrine of judicial review? 

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