This essay shall be separated in two sections; whereby one question shall be answered in each section. First to be addressed is the question, do Judges in the UK make political decisions? I will begin with the works of Herbert Lionel Adolphus Hartand and Ronald Dworkin, discussing what they both refer to as a ‘hard decision’. This will set the grounding for the detailed and concise discussion regarding the rest of Dworkin’s theory further into the essay. Supplementary to Dworkin’s theory, I shall consider two significant cases; Charter v Race Relations Board and R v R. These cases will be discussed whilst referring to Dworkin’s work

Next to be considered, is the subject whether or not judges be able to make decisions based on Political grounds? This section aims to discuss different academic authors, in relation to the above question. I will first discuss the doctrine of separation of powers, and its relevance to the study of judicial decision making. Incorporated into this discussion, I will consult the relevant case law, which will underline the necessary points to demonstrate the challenges and advantages of this doctrine. The work of Dworkin shall be considered in further detail, yet with the inclusion of some academic authors to which will illustrate the advantages and disadvantages of his theory. This will include the work of Herbert Lionel Adolphus Hart (Hart), Jeremy Waldron and Anthony R. Reeves.

What is a ‘Hard case’?

Ronald Dworkin, an American scholar specialising in constitutional law, expresses an interesting yet controversial view of the Judiciary and the way in which judges decide ‘hard cases’ 1. To begin with, I think it is essential that it is established what Dworkin is implying when he refers to ‘hard case’.

William Twining and Neil MacCormick2 define it as:

‘A situation in the law that gives rise to genuine argument about the truth of a proposition of law that cannot be resolved by recourse to a set of plain facts determinative of this issue.’3

Twining and MacCormick then go on to use an interesting analogy, one taken from Hart. Imagine if the use of vehicles was prohibited from the park, by a statutory provision. Then, let us say there were no statutory definitions to guide judges how to interpretation this meaning4. Twining and MacCormick suggest that roller skates could be included in the Judges interpretation of the provision, depending on each individual’s interpretation of the word ‘vehicle’. What is being addressed here, is that statutes are not always clear cut, and easy for Judges to interpret, thus making it a hard decision for the Judiciary.

Ronald Dworkin suggests what a hard case may be, thus using the ‘rule book’ theory. He infers that Parliament, when implementing a rule into the rulebook has, indubitably, made it unclear5. Equating to Judges being forced to interpret the words of the rulebook, to the cases that appear unto them.

Dworkin’s Theory: Do Judges make Political Decisions?

Ronald Dworkin in the book ‘political judges and the rule of law’, states that Judges do in fact make political decisions6. Dworkin’s also purports that:

‘Some academic lawyers, however, who count themselves critics of British judicial practice, say that British Judges actually do make political decisions’7.

Therefore, it is understood that Dworkin’s and many other academic authors respect the view that Judges do in fact make political decisions. However, Dworkin expresses that Judges will have make political decisions in one sense8; which means that judges have a duty to enforce acts of parliament, which is generally (so to speak) based upon political matters. Therefore Judges cannot entirely get away from making political decisions. However, what Dworkin implies is that Judges have become very creative, and they are increasingly making substantial decisions in law.

Charter v Race Relations Board Respondents

A case highlighted in Dworkin’s discussion on the political role of judges, is Charter v Race Relations Board respondents9. The claimant in this case, was born in India. He had been residing in England for 9 years, by which time he then sought membership at the local conservative club. His application was proposed in April 1969. During his application, the chairman had made it clear that he did not want the claimant to join the club, on reasons based purely on the claimants colour10. The County Court Judge ruled that Section 2 of the 1968 Race Relations Act had not been violated. Contrary to the county court decision, the Court Of Appeal reversed that decision11. The House Of Lords decided that the County Court Judge was indeed correct, on the basis that:

‘The words “a section of the public” in section 2 of the Act were words of limitation, “public” being used in contrast to “private,” so that there was no public element where a personally selected group of people met in private premises and the club which they constituted did not provide facilities or services to the public or any section of the public12’

This meant that the conservative club would not constitute as a ‘section of the public’, therefore it would not be unlawful for them to discriminate on the grounds of colour or ethnicity. However, this is a good example of Judges deciding matters of public policy, which is traditionally vested in the Executive and the Legislator13. In Dworkin’s argument, he proposes that Griffith’s believes that the House of Lords were (although perhaps without knowing) enforcing a political position14. This huge step that the House Of Lords took opened the doors in the future for Judges to make political decisions. Judges could achieve this by using the technical meaning of a statute in order to achieve a desired result, which would coincide with that of a particular political position.

R v R

In the case R V R15, a Husband was accused of attempted rape of his wife. The issue that arose was the meaning of ‘rape’ under the sexual offences (amendments) act 1976 s. 1(1)16. The question that was presented to the House Of Lords, was that the 1976 act made it legal for a man to sexual assault his wife. This justification is on the basis that when both partners entered marriage, this basically suggests that a wife gives implied permission for her husband to have sexual intercourse with her, without any consent17. At the time of the hearing, the act that the husband had committed was not a criminal offence. The House of Lords however, declared that:

‘That there was no longer a rule of law that a wife was deemed to have consented irrevocably to sexual intercourse with her husband18’

Thus, the Husband was charged with a criminal offence. This case amplifies what Dworkin would refer to as ‘political principle’, whereby the rights of an individual are protected against the law. This is contrasted with Charter v Race Relations Board, whereby the individual’s rights were put after that of political policy.

Separation of powers

The separation of powers is an important, yet unwritten, doctrine in the United Kingdom. It sets out the basic principles of Government and the duties at which it must adhere to.19 This theory, as put forward by Montesquieu20, defines the government by separating it into three branches; The Executive; The legislator and the Judiciary. These segregated branches have separated roles and functions to play. The Executive is the branch that formulates policy, and the: ‘sovereign of the state is head of the executive’21. The Legislator includes both Houses Of Parliament, by which are elected by the general public, and its function is to make law. The Judiciary is the adjudicator, which seeks to uphold the acts of Parliament through cases at which are presented to the courts22. Montesquieu pointed out the importance of the independence of the Judiciary by saying:

‘There would be an end to everything, If the same Man, or the same body, whether of the nobles or the people, were to exercise those three powers, that of enacting laws, that of executing public affairs, and that of trying crimes or individual causes23’.

This is a basic principal, that no one person should have all three powers. However, there will always be an inevitable overlap between each branch of the government, this is done through what is called ‘checks and balances24’. Although, it would appear that the British constitution relies heavily on these checks and balances, than the strict separation that Montesquieu laid down.

Furthermore, the relevance of Separation of Powers and the question ‘should judges make political decisions’ is a matter worth much consideration. The doctrine seems to suggest that judges should not be making political decisions; their role is to implement the acts of Parliament. Hilaire Barnett asks the never-ending question: ‘Do Judges make law?’25 The case R v R26 is a good example; as the courts constructed a new definition of rape by which a man could no longer, lawfully, rape his wife. This was then incorporated into statute27. Without the courts assistance in this case, the legal definition of ‘rape’ may not have been amended28. This case demonstrates that Judges do in fact make political decisions; the decision to use retrospective effect of the sexual offences (amendment) Act 1976, in order to achieve a fair outcome. Had they not used political grounds, then the Judges would have just simply read the plain, dictionary definition of the term ‘rape’ and applied as read. Another case whereby the courts had to make a decision based on political grounds is Ghaidan v Godin-Mendoza29. The House Of Lords, in this case, decided to overturn a previous decision (Fitzpatrick v sterling housing association ltd30) in order to apply schedule 1, para 2(2) of the Rent Act 1977 to same sex partners31. This was so that the Rent Act 1977 could read and give effect to the human rights act 1998, at which Mr. Mendoza claimed his conventional rights were breached. This case helped ridicule the discrimination towards homosexual couples, wishing to live together, and a fundamental movement in the social society of the United Kingdom. This House of Lords decision was a political movement, and increased the rights of homosexual couples.

Advantages For Judge’s making Political Decisions

As demonstrated in R v R and Ghaidan v Godin-Mendoza, there can be groundbreaking decisions that stem from Judges making these types of decisions. Firstly, the decisions that the Judiciary make, keep the law up to date, with reference to the two cases cited above. There is far too much legislation passed, for Parliament to filter through them all, and address the issues that need changing. This would take a considerably outrageous amount of time, and is not reasonably practicable. Therefore, the need for the judiciary to make crucial political decisions is essential to keep law updated. Jeremy Waldron explains Dworkin’s argument as to why judges should be able to make important, political decisions:

‘Insures that the most fundamental issues of political morality will be finally set out and debated as issues of principle and not political power alone.” Absent the role of the courts, he implies, there is no guarantee that this will happen.’

This seems to suggest that without the courts making such political decisions, and then the law would become politically unbalanced, with gaps in major areas of law. This could result in what Dworkin would refer to as political policy, and not based on principles.

Dworkin’s Theory and Other Academics

Ronald Dworkin expresses in his writing that many British academics believe that judges should not reason their decisions on political grounds. He infers that this is an established view32. Dworkin’s own beliefs seem to differ slightly from this, however. He strongly believes that Judges should make their decisions based upon Political principles, and not policy. ‘Political principle appeals to the political rights of individual citizens33’, whereas political Policy is designed to ‘promote the general welfare or public policy34’. Anthony R, Reeves35 discusses Dworkin’s work, and associates his ideas with that of his own. He stipulates that Dworkin believes in adjudication, which he explains as being:

‘The authority of law for the judge depends crucially on law’s ability on an occasion of adjudication to serve some worthwhile purpose of political morality36’

What Reeves is suggesting is that Judges should perhaps decide what Dworkin calls ‘controversial’ cases, with a moral purpose. The belief to allow citizens to have their political rights, instead of just applying a political policy, whereby an unreasonable conclusion may be drawn. Therefore, Dworkin is suggesting that he doesn’t take the popular established view that judges should not make decisions based on political grounds, he believes that they should use political reasoning, but only for the purpose of the individuals rights and using moral reasoning.

Another author, who respects the work of Ronald Dworkin, brings forth a valid argument for the reasoning behind judicial decisions. Jeremy Waldron37 implies that:

‘Are judges good at morality? Are they better at moral reasoning than other political decision makers? Is the quality of their moral reasoning a reason for assigning final decisions about rights to the judiciary rather than to legislatures38?’

This raises an interesting discussion, as it has not yet been mentioned that perhaps Judges may be held with the responsibility, merely because they are worthy of making these kinds of decisions. Jeremy also infers that:

‘ In short, judges seem to take moral issues seriously, in a way that does not seem to be true of the noisy, chaotic, self-interested, and majoritarian proceedings of our legislatures39.’

To relate back to the question, should Judges be able to make political decisions, the authors at whom have both commented on Dworkin’s theory, present some interesting ideas. Dworkin argues that Judges can make decisions on political grounds, however only on principle not on policy. Therefore, the Charter40 case is a good example for Dworkin’s theory. The courts chose to implement the Race relations Act as to benefit the private organization, and not that of the individual, at whom rights were at stake. The House of Lords chose in favour of public policy, and sided with the conservative club.

Hart is an academic, whom disagrees with Dworkin’s ideas and concepts on how Judges should decide hard cases. Hart believes that judicial discretion is creative but also restricted41. Hart goes on to say that a hard case is a break down in communication, as the legislator cannot possibly know what situation will arise before making them, therefore legislation is purposely made general with a wide interpretation, rather than a narrow one.

Hart takes the viewpoint that judges are left to ‘fill in the gaps42’ where the law has not covered these loop holes. Also, in Hart’s theory, Judges are able to base their decision on policy, whereas in Dworkin’s they base it on Principles43. Moreover, Dworkin’s argues that decisions made by the judge’s discretion are undemocratic and retroactive.44 This is because Judges are undemocratic themselves, as they have not been elected, whereas Ministers have been. Therefore this makes them unaccountable. Furthermore, Dworkin’s believes that: ‘The law does not run out and leave discretion for judges45’. On the contrary, Hart believes the opposite to this. Hart accepts that his viewpoint on judicial discretion is rather undemocratic, however, he believes that this is a small price to pay in comparison to the alternative resolutions available for judicial discretion46. Hart criticises Dworkin’s theory because:

‘For every case there is some solution which is already law . . .and which awaits a discovery47’

Whereas, Hart believes the reasons that hard cases arise, is because there isn’t the law for the Judge to apply, therefore Dworkin’s theory rejects Harts.

Both Dworkin and Hart make equally good points. However, there are distinct differences between them. Dworkin’s believes that decisions should be made on legal principles, and Hart believes that Judges should use their discretion. However, both of which believe that judges must make political decisions, but the way in which they should achieve this is differed in opinion.

Conclusion

As discussed above, there are many mixed views on whether or not Judges should base their decision upon Political reasoning. I can provide, with the help of Dworkin’s work, that Judges in the UK do indeed make political decisions. Charter v Race Relations Board and R v R illustrate this well, however, it can be argued that it is necessary for Judges to make these decisions. Underlying the advantages of judges make such important decisions in hard cases, demonstrates that it is necessary, as it keeps the law up to date. Without Judges making such decisions, I believe that Harts theory of ‘there being gaps in the law’ would inevitably occur. With lack of time for Parliament to check every piece of legislation, it is essential that any gaps or uncertainty be cleared up by way of common law.