The Law and Politics: More Power to the Judges--and to the People?

Abstract

DURING the final decades of the twentieth century, there was a steady shift in power from politicians to judges, as judicial review, the mechanism by which public bodies are held legally accountable, became increasingly important. This shift received considerable impetus with the passing of the Human Rights Act 1998 (HRA), which came into force in England and Wales on 2 October 2000. It not only provides an additional ground for individuals to challenge executive action, but it also gives the courts wide interpretative powers and a set of principles against which the actions of public bodies can be measured. It is too early to determine the effect of the Human Rights Act on executive/ judicial relations. However, there is already some evidence of how the courts will use their new powers. This article will examine this evidence, as provided by judicial review, private law and human rights actions brought in the courts during the year 2000. It will then consider the wider implications of the HRA. Judicial decisions during 2000 judicial review. At the beginning of the year 2000, the issue of General Pinochet still lingered. The legal intricacies of the case had preoccupied the courts since October 1998 but early in the new millennium the matter was resolved when the challenge of the decision of the Home Secretary, Jack Straw, to allow Pinochet to return to Chile on the grounds that he was unfit to stand trial was unsuccessful and the general left the country. The judges were, no doubt, relieved to see the end of the Pinochet saga, not only because of the highly charged nature of the succession of challenges and appeals to which it had given rise, but also because of the damage caused to the reputation of the House of Lords by the Hoffmann incident. Lord Hoffmann, one of the Law Lords who had heard Pinochet’s appeal against extradition, had a close association with Amnesty International and this was held by an appeal panel of the House of Lords to have given rise to a real danger of bias. As a result, the House of Lords had to rehear the case. The finding of bias produced a surge of challenges on similar grounds and confusion among judges as to when they should stand down from hearing cases. These culminated in the Locobail case, heard by the Court of Appeal in November 1999, 1 which sought to give some guidance. However, the issue of bias did not go away, arising in the context of the Human