Declining majoritarianism and the judicialization of politics in the UK

Helen Hardman

The design of political systems shapes the power of the courts vis-à-vis the executive and legislature. Greater diffusion of political power makes executives less able to rein in the judiciary and in turn makes courts more likely to assert themselves. Thus judicial activism is more often associated with federal or multi-party systems. The first part of this paper focuses on declining majoritarianism in the UK system as an explanation for judicial activism, or, the increasing judicialization of politics in the UK. The research examines the role of the Human Rights Act and the European Convention on Human Rights in this development and identifies from archival sources since the 1970s both Conservative and Labour governments’ preoccupation with the empowerment of the domestic courts. This may, in part, explain the bipartisan nature of Parliament’s offensive against the courts in the context of prisoner voting rights in 2011. The second part of the paper reviews a variety of instances when judges have acted as unofficial political opposition to the UK Government.

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