Judicialization of Politics in the United Kingdom

Author(s): Maurice Sunkin

Source: International Political Science Review / Revue internationale de science politique, Vol.
15, No. 2, The Judicialization of Politics. La judicialisation de la politique (Apr., 1994), pp. 125-
133
Published by: Sage Publications, Ltd.
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InternationalPolitical ScienceReview (1994), Vol. 15, No. 2, 125-133

Judicialization of Politics in the United

Kingdom

MAURICE SUNKIN

ABSTRACT.The article examines recent judicialization of politics in the

United Kingdom from two perspectives, namely: judicialization induced by
the courts and judicialization induced by politicians and administrators.
Using these two perspectives the article shows that judicialization takes
many forms, occurs for many reasons, and is present at many levels of the
United Kingdom system. Judicialization is likely to grow in importance as
the influence of Europe grows.

Introduction
The United Kingdom has an essentially political constitution (Griffith, 1979). It is, of
course, unwritten and contains no statement of fundamental rights. This together with
the absence of judicial review of primary legislation means that the courts and law have
traditionally played a marginal role in political life. Such a constitution does not lend
itself to a judicialization of politics, but judicialization has occurred and is likely to
become a more important feature of the system as the impact of Community law grows.
Vallinder defines judicialization of politics as normally meaning, either, (1) the
expansion of the province of the courts at the expense of politicians and/or admin-
istrators, or, (2) the spread of judicial decision-making methods outside the judicial
province proper (Vallinder, 1992). [See, also, pp. 91-99 this issue-Ed.] There is
clearly much room for debate as to what constitutes judicialization, and those
seeking it might find it in the most unexpected places. The second aspect of
Vallinder's definition appears broad enough to include administrative use of rules
and principles that have been developed by the courts, as well as the use of adjudica-
tive techniques (see further, Jowell, 1973). The work of the Social Fund
Commissioner and her Inspectorate, in reviewing decisions of social fund officers
using principles analogous to the principles of judicial review, would on this basis
be an example of judicialization even though their working methods are not
adjudicative in nature (Drabble and Lynes, 1989).

0192-5121 94/02 125-09 ? 1994 International Political Science Association

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126 Judicializationof Politicsin the UnitedKingdom

The definition might also be pushed to include two other important develop-
ments. One is the increasing use of law to define, contain, and control local govern-
ment, a development that has "juridified"central/local relations and "judicialized"
local government administration (Loughlin, 1986; Leach and Stoker, 1988). The
other is the increased emphasis placed upon law and legal procedures in central
government administration, which has occurred as a result of growth in the use of
judicial review over the past fifteen years or so (Sunkin and Le Sueur, 1991).
Judicialization implies greater judicial involvement, more open and more ration-
al decision-making, and generally a system in which decision-makers are more
accountable to the law. But judicialization is not a coherent trend necessarily aimed
at (or leading to) greater public participation, more legal accountability, or an
upgrading of fundamental rights at the expense of legislative majorities. On the
contrary, judicialization may occur because government seeks to centralize its
control, reduce its accountability to the courts, or curtail citizen's rights. From this
perspective, it is ironic that judicialization may be an aspect of "de-legalization".
De-legalization has a variety of meanings, but in essence it is concerned with a
movement away from formal constitutional systems of accountability in favour of
more informal, less accessible, and less accountable methods of decision-making
(Lewis, 1985). De-legalization may be achieved byjudicialization when, for example,
judicial techniques are introduced within administration schemes in order to
minimize judicial review and to keep decision-making out of the judicial province.
Again, the Social Fund Inspectorate and the managerial strategies aimed at reduc-
ing government's vulnerability to challenge are examples of this.
In order to emphasize the diverse nature of judicialization I intend, very briefly,
to examine some of the most significant recent developments from two perspec-
tives: court-inspiredjudicialization and politically inspired judicialization.

Court-inspired Judicialization of Politics

Today it is perhaps common-place to observe that.. .there has
been a dramatic and indeed a radical change in the scope of
judicial review.
-per Lord Roskill'
...increasing anxiety at the highest levels of government as
to whether judicial review is inhibiting the implementation of
governmental decisions and policy to an extent which is
becoming intolerable.
-Lord Justice Woolf (Woolf, 1990b: 17)

The past decade or so has witnessed a dramatic growth in the use of the courts to
challenge decisions of local and central government (Sunkin, 1987; Sunkin, 1991).
This has been accompanied by a general liberalization in the standing requirements,
an extension of the scope of judicial review, and improvements in the grounds upon
which challenges may be mounted. The result is that the courts are now regularly
drawn into areas of government that would have been regarded as beyond judicial
competence even twenty or thirty years ago. There are many examples of judicial
involvement in local2 and central government politics. They include decisions
adversely affecting educational policy,3 television licensing,4 airline regulation,5 local
government finance,6 and social welfare.7 In this section I will look briefly at three

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 MAURICE SUNKIN 127

contexts in which the extension of judicial review has been particularly prominent:
prison discipline, City (of London) regulation, and review of prerogative powers.

Prisons.A senior administrator likened the traditional culture of the prison service
to that of an army unit, consuming its own smoke and ensuring that nobody looks
in.8 Prior to the late 1970s this view was respected and encouraged by the judges
who refused to interfere with prison disciplinary procedures.9
The situation started to change when the Court of Appeal, in exparteSt Germain,'?
asserted jurisdiction to review disciplinary decisions of the Prison Board of Visitors.
The decision apparently came as something of a shock to administrators who
thought that the roof had fallen in on them. St Germainwas followed by a series of
decisions holding that prisoners retain their civil rights whilst in prison;" that
Boards of Visitors have a duty to consider allowing legal representation;'2 that
governors' disciplinary adjudications and certain managerial decisions are also
reviewable.13These English cases were reinforced by decisions under the European
Convention on Human Rights.'4
At each stage of this history the Home Office vigorously opposed judicial inter-
vention, fearing that "opening of the door to judicial review . . . would make it
impossible to resist an invasion by . . . 'the tentacles of the law'."'5In addition, it
was claimed that such an invasion would undermine the governor's authority and
"seriously aggravate the already difficult task of maintaining order and discipline
in prisons."16The judges, however, were not impressed. "No one," said Lord Bridge,
"can predict the consequences" of judicial intervention with any certainty."Judicial
intervention might have some adverse effects, but "[n]othing.. .is so likely to gener-
ate unrest among ordinary prisoners as a sense that they have been treated unfairly
and have no effective means of redress."17In his view, freer access to the courts
would probably make it easier, rather than harder, to run prisons.
As it happens, an invasion of the tentacles of the law has not occurred. Far
from increasing, the number of prisoner applications for judicial review substan-
tially declined during the late 1980s (Sunkin, 1991). Whatever the reasons for
this, the decline in prisoner litigation does not reflect a general improvement in
conditions in British prisons or an improvement in morale amongst prisoners, or
within the prison service in general. Recent years have seen some of the most
violent disturbances ever to have taken place in our prisons. The riots at
Strangeways Prison during April 1990 are probably the best known. The report
of the inquiry, headed by Lord Justice Woolf,'8 into the events at Strangeways
emphasized the need to improve the quality of justice for prisoners and is likely
to lead to greater judicialization of disciplinary and complaints procedures within
prisons (Woolf, 1990a).

CityRegulation.In R.v. Panel on Take-oversandMergers,exparteDatafinPlc.,19the Court

of Appeal held that decisions of the City Panel on Take-overs and Mergers could
be judicially reviewed. The case indicated judicial willingness to intervene in the
work of a body that had been established by the City of London as part of its inter-
nal mechanisms for self-regulation. The Court of Appeal justified intervention on
the grounds that although the panel did not derive its powers from a public source,
such as statute or the royal prerogative, its functions are of public importance, and
it therefore operates in the public domain. Datafin showed the courts were prepared
to impose principles of public law upon bodies operating at the fringes of govern-
ment but which are not politically accountable. The imposition of accountability to

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128 Judicializationof Politicsin the UnitedKingdom

the courts will become increasingly significant as government policy "hives-off"a

wider range of governmental functions to departmental agencies and the private
sector (see further, Birkinshaw et al., 1990). As in the rather different context of
prisons,judicial attitudes reflect wider European trends that are leading to greater
legal regulation of City (of London) life (Jowell, 1991).
TheRoyalPrerogative. From the perspective of constitutional law, perhaps the most
significant extensions of judicial review are made possible by the decision of the
House of Lords in CouncilforCivil ServiceUnionsv. Government CentralCommunication
Headquarters.20 Acting under prerogative powers, the Prime Minister, as head of the
Civil Service, ordered workers at the Government Central Communication
Headquarters (GCHQ) to relinquish their trade union membership. The unions
challenged this action on the grounds, interalia, that the Prime Minister's refusal
to consult with them prior to reaching her decision was contrary to natural justice.
For the Prime Minister it was argued, interalia, (a) that prerogative powers could
not be judicially reviewed; (b) that there was no obligation to consult; and (c) even
if there was, in this case the decision not to consult was taken in the interests of
national security and was therefore unreviewable.
It was held that the mere fact that the Prime Minister had acted under prerog-
ative powers did not mean that her decision could not be reviewed. What matters
is not the source from which the power derives but the nature of the decision being
taken. Provided decisions are justiciable the courts will be prepared to intervene.
Here, the court accepted that there had been unfairness, but was not prepared to
quash the action because of the government's claim that it had acted in the inter-
ests of national security. The decision means that the executive can no longer claim
immunity from legal challenge simply by relying on the ancient prerogatives of the
Crown. Its importance, however, was diminished by the willingness of the judges to
accept the national security justification, even though it was supported by slight
and even contradictory evidence (Griffith, 1991: 155).
According to Vallinder judicialization of politics occurs when the province of the
courts expands at the expense of politicians. The deference shown by the judges in
the GCHQcase to the executive's national security defence suggests that extensions
in the potential scope of judicial review are not necessarily at the expense of the
government. In the United Kingdom, politicians always have the last word, and the
judges know this. If judges ".. .fly too high, Parliament may clip their wings. They
entirely lack the impregnable constitutional status of their American counterparts"
(Wade, 1988: 30). Statutory reversal of decisions unfavourable to government and
exclusion of judicial review are common features of political life, and seem to have
assumed a new prominence since 1979 (Graham and Prosser, 1979: 11; McAuslan
and McEldowney, 1985: 28-31; Prosser, 1983: ch. 5).
Judicial wings may also be clipped more subtly, as we shall see when I discuss
politically motivated judicialization. Suffice it to say that judges are well aware that
there are dangers in the "over invasive use of judicial review" (Woolf, 1990b: 19)
and that the prevailingjudicial mood is rather more cautious than it might appear.
Extensions of jurisdiction tend to be tentative and are often proclaimed in cases in
which the courts decline to intervene.2 Moreover, there is a tendency to erect new
barriers to intervention as the old ones are being dismantled. In recent years
concepts such as justiciability have come to the fore,22and the courts have refused
to intervene in areas they regard as being politically sensitive23 or where they
believe that their intervention will create undue administrative inconvenience.24All

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 MAURICE SUNKIN 129

the evidence shows the judges jealous to maximize their discretion over the scope
of judicial review, but it should not be assumed that this necessarily implies a more
invasive use of their jurisdiction.

Politically inspired Judicialization

Judicialized procedures, such as tribunals and inquiries, are used to inform
decision-making and resolve conflict in a vast array of contexts. It is commonly
said that tribunals were established because courts were unable to provide the
cheap, accessible, and informal justice demanded by social welfare programmes
(Street, 1975: 2). So perceived, this form ofjudicialization fits well with the theory
that judicialized procedures further the relative status of individual rights. But,
this benign view of the rationale of tribunals is disputed. It is said to neglect polit-
ical motivations behind judicialization, such as the desire to legitimate contro-
versial policies and depoliticize conflict (Harlow and Rawlings, 1984: 67-78;
Bridges, 1975; Prosser, 1977: 42-44).25 Recent employment of forms of ju-
dicialization-although not necessarily of adjudication-by politicians and admin-
istrators in the context of central government administration, central/local
government relations, and the Social Fund illustrates some of the political uses
of judicialization.

Judicializationof CentralGovernment Administration.By the early 1980s it had become

obvious that central government was vulnerable to legal challenge (Kerry, 1983 and
1986). The underlying reason for this vulnerability lay in the cultural ethos of a
civil service that had traditionally placed a low priority on law and the need for
officials to be legally aware (Drewry, 1986). Prompted by their political masters,
senior managers responded by encouraging more careful draftsmanship and by
introducing a programme of training aimed at improving legal awareness (Sunkin
and Le Sueur, 1991; Bradley, 1987). From the outset the main thrust of the strat-
egy was defensive and, as one eminent judge has remarked, it has led to the intro-
duction of procedures "which appear to be designed to remove particular decisions
from the area of judicial review" (Woolf, 1990: 17). The emphasis is upon improv-
ing the defendability of decisions, and whilst this may improve aspects of decision-
making, the new culture (so we are told) encourages officials to go through a
charade of formality in decision-making in order to protect their authority from
legal challenge.26
My purpose in focusing upon the negative aspects of the managerial strategy is
to show that judicialization can be used in ways that are perceived to reduce
accountability, and which may have an uncertain positive effect on the overall
quality of decision-making.
Local Government. Local government litigation was one of the areas in which govern-
ment appeared particularly vulnerable. What made this all the more worrying for
government was that the litigation was an immediate by-product of its own policy.
Increased central control of local government was a main plank of Thatcherite
policy through the 1980s.27This was achieved by "the aggressive use of the law" (S.
Leach and G. Stoker, 1988: 98) which has led to a collapse of the traditionally flex-
ible structure within which local and central government could bargain and nego-
tiate. In its place was imposed a juridified relationship which forced conflict into
the courts (M. Loughlin, 1986: 193; M. Grant, 1986; Bridges et al., 1987).

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130 Judicializationof Politicsin the UnitedKingdom

As well as enabling central government to define the obligations of local auth-

orities, juridification helped shift politically contentious issues, such as education,
transport, and housing (issues on which the Tory central government was politically
vulnerable) into the judicial sphere, thereby diminishing the political power of such
authorities, particularly those in Labour strongholds.

TheSocialFund.The Social Fund was introducedamidst considerablepolitical contro-

versy by the Social Security Act 1986 (see Drabble and Lynes, 1989). The Fund is
designed to help those alreadydependent on state supportto cope with financialcrises
and emergencies.Payments,in the form of grants or loans, are made on a discretionary
basis by local social fund officers. These payments are made in accordancewith need,
but local officers must alwayskeep within their budgetaryallocationeven if this means
that needs cannot be met. When the scheme was originallyput to Parliament there
was no provisionfor appeals against decisions of social fund officers. The ministerial
view was that appeals would undermine the strictly budgetary nature of the scheme,
because appellate bodies would not be constrained by the budget. The absence of
appeals, however, attracted widespread criticism and became the focus for hostile
opposition in Parliament, which eventually forced a concession out of government.
Whilst still refusing to allow an appeal, government agreed to introduce a system for
reviewingdecisions of social fund officers on proceduralgroundsakin to the principles
of judicial review. The purpose of the review is to ensure that decisions have been
properlytaken in accordancewith the appropriatelaw, but it is not intended to second
guess the decision itself. Thus the discretion of the social fund officers within their
budget is retained whilst providinga degree of redress.
The reviews are carried out by social fund inspectors who are responsible to the
social fund commissioner. Although their work is akin to that done by High Court
judges when considering applications for judicial review, the inspectors are not
legally qualified and tend to be drawn from within the Department of Social Security.
The scheme is an example ofjudicialization being adopted by a reluctant govern-
ment in order to buy political support for, and to add legitimacy to, a controversial
and unpopular programme. Here the judicialization is combined with discretion in
a way that accepts the desirability of catering for procedural rights, even if substan-
tive rights cannot be protected.

Conclusion
Judicialization, as it has been defined here, takes many forms, occurs for many
reasons, and is present at many different levels of the system. It is a technique that
does not necessarily increase levels of participation, accountability, or legal ration-
ality. Moreover, judicialization at one level of government, or in one context of
administration, may well be at the expense of judicialization and accountability at
other more public and more important levels of government.
I have made passing reference to the influence of European Community Law and
the European Convention on Human Rights. These, and particularly the former,
are exerting fundamental pressures on the constitution of the United Kingdom and
upon its legal culture. Insofar as there are coherent pressures to judicialize, they
come primarily from Europe. They will doubtless increase, and it is almost certain
that our courts will be drawn further into political and economic life. Already
concepts as fundamental as the supremacy of Parliament are being refashioned as
the courts find themselves obliged to adjudicate upon the compatibility of primary

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 MAURICESUNKIN 131

legislation with Community law. Who knows how long it will be before we have
some form of written constitution, or at least a modern Bill of Rights?

Notes
1. CouncilforCivil ServiceUnionsv. Government CentralCommunication Headquarters[1984] 3 Al
E.R. 935, at A.C. 374, at 953.
2. The best known local government decision is that quashing of the Greater London
Council's move to reduce fares on London Transport in accordance with its election
manifesto: LondonBoroughof Bromleyv. G.L.C. [1983] 1 A.C. 768. See also, Wheelerv.
LeicesterCity Council [1985] A.C. 1054, in which a decision to withdraw the licence of a
local rugby club (because the club had refused to prevent four of its members from
participating in a tour of South Africa) was quashed.
3. Secretaryof Statefor Educationand Sciencev. TamesideMBC [1977] AC 1014.
4. Congrevev. HomeOffice[1976] 1 All E.R. 697.
5. LakerAirwaysv. Departmentof Trade[1977] 2 All E.R. 182.
6. R. v. Secretaryof Statefor theEnvironment[1982] 2 W.L.R. 693.
7. R. v. Secretaryof Statefor Social Servicesex parte Cotton& Waite, The Times, 14 December
1985.
8. Interview with author, July 1988.
9. Fraserv. Mudge [1975] 1 All E.R. 79.
10. R. v. Hull PrisonBoardof Visitorsexparte St Germain[1979] All E.R. 701.
11. Raymondv. Honey [1982] 1 All E.R. 756.
12. R. v. Secretaryof State, exparte Tarrant[1984] 1 All E.R. 799.
13. Leech v. ParkhurstPrison Deputy Governor[1988] 1 All E.R. 485; Hague v. ParkhurstPrison
DeputyGovernor[1991] 3 All E.R. 733.
14. For example, Golderv. U.K. series A No. 18; 1 EHRR 524; Silver v. U.K. series A No. 61;
5 EHRR 347; Campbell& Fell v. U.K. 5 EHRR 207; Series A No 80; 7 EHRR 165.
15. Per Lord Bridge in Leechv. ParkhurstPrisonDeputyGovernor, above note 13, at p 499 refer-
ring to Home Office submissions.
16. Ibid. 500.
17. Ibid. 501.
18. The use of judges to carry out inquiries of this type is itself an example of judicializa-
tion, see further Griffith (1991: ch. 2).
19. [1987] QB 815.
20. See above note 1.
21. Ex parteDatafin and GCHQ are themselves examples of this reticence.
22. See GCHQ. Lord Diplock said, of national security, "It is par excellence a non-justicia-
ble question." See above note 1 at 952; also, R. v. Secretaryof Statefor theHomeDepartment,
exparte Cheblak[1991] 2 All E.R. 319.
23. For example, Nottinghamshire CC v. Secretaryof Statefor the Environment[1986] AC 240;
Hammersmith LBC v. Secretaryof Statefor the Environment[1990] 3 All E.R. 589; Brind v.
Secretaryof Statefor the HomeDepartment[1991] 1 All E.R. 720.
24. For example, Puhlhofferv. HillingdonLBC [1986] 1 All E.R. 467; R. v. Secretaryof Statefor
Social Services,expartethe Associationof Metropolitan
Authorities[1986] 1 W.L.R. 1.
25. Judicialization is said to depoliticize controversy by: providing an appearance of neutral-
ity; emphasizing procedural fairness and directing attention away from substantive injus-
tice; creating the impression that conflict can be resolved on an individual basis by
formal and rational means; focusing on individual cases and deflecting attention away
from the underlying ideology of policies.
26. Address to the Administrative Law Bar Association by Michael Warr, 26 October 1987,
quoted by LordJustice Woolf (Woolf, 1990: 18).
27. During the first two Thatcher governments, over forty major Acts were passed with
significant implications for local government.

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132 Judicializationof Politicsin the UnitedKingdom

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 MAURICESUNKIN 133

BiographicalNote
MAURICE SUNKIN is a Senior Lecturer in Law at the University of Essex, and a barris-
ter. He has developed a number of research projects examining the use and effects
of judicial review in the United Kingdom and has published widely in this and other
areas. ADDRESS: Department of Law, University of Essex, Wivenhoe Park,
Colchester C04 3SQ, England.

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