Discuss the View That Judges Need More Power

Discuss the view that Judges need more power
Judges are members of the judiciary, and so their role is to question, apply and interpret the law made by Parliament. For this reason, some have suggested they need more power in order to perform their task properly, others have suggested they cannot. Let us explore these arguments in more detail.
One could suggest that Judges do not need more power as they are unelected bodies with little legitimacy in the posts they apply. Given that judges have the opportunity to interpret law and therefore essentially define it, they can be considered very powerful people in a state function-and therefore should not be given more power. Certainly Lord Michael Howard considers this the case and has suggested that “the power of judges has increased and…ought to be diminished”, based on the argument that as individuals who are unelected and therefore unaccountable they should not have power. For example, a Member of Parliament is accountable for his actions and any mistakes he should make, whereas a judge who makes an error in the interpretation of the law cannot be held accountable for this as he is not an elected member of the judiciary, and therefore cannot be suitable punished for these actions. Given this lack of legitimacy, one could suggest that judges do not need more power, as in their current role they do not have legitimacy and given any more power, this fact would only be exacerbated. However this is a weak argument due to the principle of Parliamentary sovereignty. Parliamentary sovereignty ensures that if judges do misinterpret the law, it can be repealed and re-phrased or re-worded in order to achieve the original intended purpose. This ensures that judges who make mistakes will simply be later overruled by Parliament, ensuring the correct decision is reached later on.
Similarly, some would say judges do not need power as The European Convention of Human Rights has changed the power of judges drastically. By providing judges with a binding act on all public institutions but Parliament, judges have enough power in their hands to protect rights. The Human Rights Act of 2000 incorporates this into British law, and judges are suitably given the power to ensure that no conflict arises between the Human Rights Act 2000 any legislation that Parliament should choose to pass. Thus judges could be determined to have plenty of suitable power in their hands to ensure that Parliament and no public body perform any act that is binding on Parliament. The Belmarsh case is a particularly relevant example here, as it emerged that the Human Rights Convention is almost binding on Parliament. However, judges have also in a sense given themselves more power as they now openly challenge politicians outside of the courtroom and much of this can be attributed to the Human Rights Convention. For this reason many would consider that to give judges any more power would not be a good idea as it could lead to judges challenging politicians even more than they currently do.

However one can say that in some sense judges have too little power as ultimately the right of appeal will likely essentially overrule their decision. Most often when a judge makes a decision and an outcome is not received well by either party (but most often a wealthy individual or the state who can afford to finance the continued legal fees), they will simply appeal the decision and therefore the power of the judges is called into question, as ultimately most judges will end up passing a judgement that is only appealed and judged again by another judge. For this reason one could suggest that judges do not have enough power as the appealing of a decision means that the fundamental decisions are really with a small amount of judges in institutions such as Supreme Courts. For example the case of Smith vs Secretary of State for Defence is an example of when both parties at some point or another used the power of appeal to take the case from the High Court all the way to the Supreme Court. Ultimately therefore one could suggest that the power of appeal takes away from the power of judges. The issue with this argument is that it is a necessary power in a democracy, and the necessity of the power to appeal is one that cannot be removed only in the interests of judges needing more power. While this may be a problem, it is certainly not a pressing one, or indeed one that can be solved at all.
One must also consider the judge’s purpose-which is to protect the rights and citizens of the country and the fact judge’s only have the ability to interpret the law means they cannot effectively do this. The absence of a written constitution to take priority over Parliament (as there is most other countries) ensures that the role of the judiciary is one that comes in second to that of the legislature. The fact that Parliament is fundamentally sovereign, and can essentially ignore what a judge says because it can create its own new law to overrule the judge, means that fundamentally and practically judges have almost no power as they can merely be overruled by another branch. Therefore the inequality and the purpose of the judiciary, when taken in to account, mean that judges are deprived of the power to scrutinise law, because ultimately, the law they scrutinise can merely be changed by Parliament. However, this argument is practically not a good one as it is rare that Parliament ever changes a law after judges interpret it in a different way. For example if the judges interpret a law which Parliament does not approve of, it is rare that Parliament instantly repeals it, and then passes an Act which provides the original intention. For this reason, this argument though theoretically correct, is not a practically viable one.
Similarly, the European Court of Justice has undermined the power of judges, as the European Court of Justice indeed takes precedence over anything the judge man say. Indeed, even if Parliament provides another law, the European Court of Justice is superior to even Parliament, and therefore the ability of a judge to interpret law will always be overruled by the European Court of Justice. Linked back to the ability to appeal, the fact that the ultimate destination is the European Court of Justice means that judges are given essentially no power compared to the institutions in Europe that will overrule them. For example the current theoretical situation is a complicated one with regard to the car insurance equality for both sexes. While the UK is against the measure, European Judges insist that companies cannot discriminate between sexes on the issue, and there remains a theoretical issue of power balance and compensation. One therefore has to consider the power of a mere UK judge in the matter. While it is his job to consider the application of the law, he appears to no power in the issue, because the Euroepan Judge has already decided, and provided a challenge to Parliament-something a judge in the UK cannot. This fundamental imbalance of power means that ultimately, a UK judge has less power than he should.
Overall, it would be fair to suggest that practically judges do not need more power at the current moment because at current-the system is “not broke”. However, one must ultimately conclude that if not broke at the moment, the system is about to, because of the constitutional issues regarding the European Court of Justice and its precedence over Parliament. Judges and their theoretical powers in the UK are uncertain-especially given the Parliamentary sovereignty, but questions arise within the European Court of Justice. I would conclude that right now, judges do not need more power, but in the future, it is likely that they will.