Independence of the Judiciary
from 4,643 applications in 2008 26 ). An early example of such a case was M v Home Office , 27 in which an asylum seeker from Zaire successfully overturned his deportation order, so opening up the possibilities of further such challenges and resulting in the current position. It is clear that, with the growth of judicial review and the ever inventive attempts being made by applicants seeking to stretch its boundaries, the executive is now more accountable under the law than it ever has been previously. That said, as the recent tragic case of Tony Nicklinson shows, the judges are conscious of the limits of judicial review and so it would be wrong to suppose that judicial independence has run away with itself. In the Nicklinson case, Lord Justice Toulson pointed out that it was ‘not for the court to decide whether the law about assisted dying should be changed and, if so, what safeguards should be put in place’ . As he went on to point out, ‘Under our system of government these are matters for Parliament to decide, representing society as a whole, after Parliamentary scrutiny, and not for the court on the facts of an individual cases or cases’ . 28 This is a proper recognition on the part of the Court of Appeal that, in keeping with the ‘separation of powers’, there are some matters which are not within the powers of the judiciary, however independent they may be, and which democracy demands are for elected (or in the case of the House of Lords, unelected) representatives to decide. Despite this recognition of the limits of judicial review, there is nevertheless every reason to suppose that the judiciary’s independence has increased in recent 26 www.justice.gov.uk/publications/docs/judicial- court-stats-2008-full.pdf (Judicial and Court Statistics 2008, page 27) 27 [1994] 1 AC 377. 28 Tony Nicklinson v Ministry of Justice [2012] EWHC 2381 (Admin) at paragraph [150].
far as the government was concerned, even though there had never been a suggestion that this was what the Lord Chancellor ever did, at least in modern times. Lastly, there is the growth of judicial review, which is the jurisdiction under which the Courts are able to review the actions and decisions of public authorities if there has been illegality, irrationality or procedural impropriety, and grant relief as appropriate – including the making of quashing, prohibiting or mandatory orders, the granting of injunctions and the award of damages. The increased use of judicial review in recent years has been widely regarded as increasing the independence of the judiciary, and as confirming the appearance of that independence in the perception of the public. Since the 1980s, the Courts have seen an enormous increase in judicial review cases, so much so that in the late 1980s, civil servants and government ministers were warned that, when making their decisions, they should be aware of ‘the Judge over your Shoulder’. This judicial presence has become more prevalent since that time, with a substantial increase over just a two year period: in 2008 there were 7,169 applications for judicial review, 23 whereas in 2010 the number of applications had increased by over 3,000 to 10,600. 24 A large percentage of these applications are immigration cases. The number of such cases has increased greatly in recent years with 8,122 applications in 2010 25 (up
23 www.justice.gov.uk/publications/docs/judicial- court-stats-2008-full.pdf (Judicial and Court Statistics 2008, page 16). 24 www.justice.gov.uk/downloads/statistics/courts- and-sentencing/judicial-court-stats.pdf/ (Judicial and Court Statistics 2010, page 5). 25 www.justice.gov.uk/downloads/statistics/courts- and-sentencing/judicial-court-stats.pdf/ (Judicial and Court Statistics 2010, page 157).
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