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(c) How and why does the judiciary sometimes come into conflict with government?
In recent years there has been a great amount of conflict between judges and the government.
Judges are unelected and unaccountable, whereas ministers are both. This causes conflict because
ministers claim they were elected to implement certain policies and it is undemocratic if unelected
judges cause problems with these policies. It is also true today that judges tend more and more to
be liberalminded, but ministers tend to be more conservative. Finally judges are concerned very
much with individual rights while the government is worrying about law and order and the control of
terrorism. Sometimes, too, European courts come into conflict with domestic policies. This essay
will now show what kinds of conflict arise.
Over sentencing there has been much conflict between people like Judges Phillips and Woolf and
ministers like David Blunkett, Jack Straw and Theresa May, all home secretaries. There has also
been trouble with justice minister Ken Clarke. Judges believe they should judge best how to
sentence criminals, while ministers say they must follow public opinion and use more mandatory,
minimum sentences. Judges don't like this kind of power taken away from them.
The Human Rights Act has caused conflict. The judges administer the Act and the Convention,
exactly as they are meant. Sometimes human rights conflict with government policies. For example
the government would like to hold terrorist suspects for a long time without trial, but human rights
legislation won't allow this. This was the basis of the Belmarsh dispute and the case of the Afghan
hijackers. There has also been much recent conflict over the meaning and application of `privacy'.
Judges tend to favour privacy, while governments support more freedom of the press. This
happened in the recent row over superinjunctions.
The European Court of Justice and the European Court of Human Rights often make judgements
that defy the British government. The Factor tame case many years ago stated that European law is
superior to UK law. Also the ECJ has made many judgements over issues like sex equality, gay
rights and pension rights that have caused problems for government and there has been conflict. The
Conservatives especially resent the power of external European courts.
So we can see why judges and the government come into conflict and we can see several examples
of how this happens.