Professor Graham Zellick KC on when the judiciary can and should speak out on policy and legislative proposals
Suppose a government concluded that it had had enough of ‘undemocratic’ judicial obstruction through the mechanism of judicial review, and introduced a Bill to abolish the Administrative Court and transfer the judicial review jurisdiction to a new statutory authority composed of unqualified lay people selected by an official.
Such a move would doubtless have its supporters, but many would be enraged and argue that it represented an unpardonable assault on the independence of the judiciary, which is a fundamental element of our constitution.
What would the judges, and in particular the leadership of the judiciary, do in such circumstances? Some would say they can do nothing, it being a cardinal principle of our constitution that the judiciary remains scrupulously aloof from politics and public controversy.
Before venturing an answer to the question, let me refer to a Bill currently before Parliament. The home secretary’s Immigration and Asylum Bill proposes
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