Framing the concept of judicial power and facilitating further analysis

Judicial power in the United Kingdom has been a subject of contemporary debate within constitutional law scholarship. Such debates have tended to emphasise normative models of constitutional thought as a means of understanding that power and its use. Furthermore, there has been a tendency within these debates to adopt a “language of judicial power” which emphasises certain dominant characteristics: most notably that judicial power is on the rise. Adhering to this language risks limiting and reducing our understanding of the nature of judicial power. The claim of this thesis is that it is important that an account of judicial power can reflect the nuances and patterns of the complex, changeable and context-dependent nature of that power with sufficient detail and sophistication. To achieve this goal, this thesis’ original contribution is to incorporate the insights of political science within its own study of judicial power.

This thesis firstly situates existing accounts of judicial power within the UK’s changing constitution and explains what it sees as the “problem of judicial power”. The approach here relates this problem to the many complex politics of judicial power alongside the inherent challenges of the concept of power itself. Secondly, this thesis uses the approaches of political scientists to develop its own analytical framework through which to analyse different episodes of judicial power, and applies this framework to judicial power exercised under section 4 of the Human Rights Act 1998 and under the office of the Lord Chief Justice. These case studies are deployed to demonstrate the benefits of “thinking politically” about judicial power. This thesis concludes that it is more accurate to discuss judicial power in terms of changing patterns, as being multidimensional and located both inside and outside of the courtroom and that recognising the political qualities of judicial power supports such an endeavour.