Judicial Overreach and the Erosion of Parliamentary Sovereignty in the UK, By Richard Miller (Londonistan) and Ian Wilson LL.B

In recent years, a growing chorus of voices has claimed that Britain's judges are running the country, sidelining Parliament's sovereignty and reshaping policy on immigration, welfare, and even environmental regulation. A Merlin Strategy survey reveals that two-thirds of the public believe the criminal justice system is politicised, with judges ruling based on personal views rather than law. High-profile cases, like the granting of asylum to a Nigerian woman who joined a terrorist group to "bootstrap" refugee status, or the £1.1 billion equal pay ruling that bankrupted Birmingham City Council, fuel perceptions of a judiciary overstepping its constitutional bounds. While these decisions expose real tensions, the narrative of judges "ruling Britain" oversimplifies a complex issue. Judicial power has expanded, but Parliament's vague legislation and reluctance to reassert its authority are equally to blame. Restoring the constitutional balance requires clearer laws and bolder legislative action, not attacks on judicial independence.

Several cases illustrate how courts have challenged parliamentary intent, often invoking the Human Rights Act 1998 (HRA) or judicial review. In immigration, the 1996 European Court of Human Rights ruling in Chahal v. United Kingdom barred deporting a Sikh militant due to a "real risk" of torture, setting a precedent that now sees 30% of UK deportation cases stalled by human rights claims. A striking example involved a Nigerian woman granted asylum after joining a terrorist group to create a persecution claim, a decision upheld despite its absurdity. The 2010 Supreme Court case HJ and HT v. Home Secretary further entrenched this, ruling that even avoidable persecution bars deportation, enabling what critics call a "cottage industry" of manufactured asylum claims.

Welfare policy has also been reshaped. In MH v. Secretary of State for Work and Pensions (2016), judges expanded Personal Independence Payment (PIP) eligibility to include "psychological distress," adding £1.4 billion annually to costs after the government's attempt to reverse this was struck down in 2017 as discriminatory under the HRA. Originally meant to cut claimants by 600,000, PIP caseloads soared, undermining fiscal goals. Similarly, Birmingham City Council's £1.1 billion equal pay settlement (2012–2023) stemmed from a Supreme Court ruling that allowed claims for "equivalent" work, despite expired time limits, due to loose legislative phrasing. This led to a bin strike and financial ruin, as the council scrambled to avoid further litigation.

Environmental rulings add another layer. In 2025, Lord Ericht's decision on the Jackdaw and Rosebank oil fields demanded new environmental impact assessments, including emissions from fuel use, despite government approvals in 2022–2023. This followed a 2024 Supreme Court precedent, effectively halting £2.8 billion in investments and £30 billion in tax revenue. Such rulings reflect a judiciary willing to override executive decisions, often citing vague "public interest" or human rights principles.

The root of this judicial assertiveness lies in the HRA and the expansion of judicial review. When Labour incorporated the European Convention on Human Rights (ECHR) into UK law in 1998, it mandated judges to apply its principles, embedding political value judgments into legal rulings. Unlike the U.S., where courts can strike down laws, UK judges issue "declarations of incompatibility," pressuring Parliament to amend legislation. However this power, combined with vague ECHR rules, has led judges to rule on policy matters, from asylum to welfare, often clashing with parliamentary intent. Critics argue this amounts to "judicial activism," with courts like the Supreme Court in R (Miller) v. Prime Minister (2019) quashing Boris Johnson's prorogation of Parliament, a move seen as overriding executive prerogative.

Judicial review has also grown in scope, not through legislation but via court decisions. The Privacy International case (2019) saw the Supreme Court sidestep an ouster clause barring review of GCHQ's actions, asserting judicial oversight despite clear statutory limits. Professor Richard Ekins KC argues this reflects judges acting as "political creatures," invoking principles to override Parliament's intentions. The HRA's requirement to interpret laws compatibly with human rights, coupled with poorly drafted legislation, has given judges leeway to fill gaps, often with far-reaching consequences.

While judicial overreach is real, Parliament shares the blame. Vague or contradictory laws, like those governing PIP or equal pay, invite judicial interpretation. The Birmingham case, as Lord Sumption noted, arose from "poorly drafted" legislation and "ill-thought-out amendments." Parliament's failure to reverse controversial rulings, like MH or Chahal, through clear legislation, signals acquiescence. The 2022 Judicial Review and Courts Act, which overturned the Supreme Court's Cart decision on tribunal reviews, shows Parliament can act when it chooses. Yet, such interventions are rare, leaving judges to resolve complex policy questions.

Lord Falconer's 2003 remark that power should shift from politicians to "those best fitted to deploy it," reflects a deliberate choice to delegate to judges. This has created a culture where judges make value judgments, as seen in Attorney General Richard Hermer's 2024 Bingham Lecture, which framed the rule of law as requiring "adequate protection of fundamental human rights" and ECHR adherence. Parliament's reluctance to rebuff this, through ouster clauses or statutory overrides, has emboldened courts, undermining the sovereignty it claims to uphold.

Public trust in the judiciary is eroding. The Merlin Strategy survey's finding that 66% see the justice system as politicised, reflects frustration with rulings like the Palestinian family's asylum under a Ukrainian scheme, which Sir Keir Starmer called "wrong." Conservative leader Kemi Badenoch's critique prompted Lady Chief Justice Sue Carr to defend judicial independence, but Starmer's point, that Parliament, not courts, should set immigration policy, echoes the UK's constitutional principle of parliamentary sovereignty. Yet, when judges override government policy, as in Miller or Rosebank, it fuels perceptions of a "kritarchy" where unelected judges govern.

This tension isn't new. The 2016 Miller case, requiring parliamentary approval for Brexit, saw judges branded "enemies of the people" by the Daily Mail. The 2022 All-Party Parliamentary Group on Democracy and the Constitution noted the Supreme Court's seven recent rulings favouring the government, suggesting responsiveness to ministerial pressure, yet public scepticism persists. The judiciary's role in blocking deportations or delaying infrastructure projects, like Chris Todd's £200–300 million road scheme challenges, amplifies this distrust.

Judges aren't "ruling Britain," just yet, but their influence has grown, often filling voids left by Parliament. To restore sovereignty without undermining judicial independence, several steps are needed:

1.Clearer Legislation: Parliament must draft precise laws, minimising ambiguity that invites judicial overreach. The Birmingham equal pay case shows how loose phrasing can lead to unintended billion-pound liabilities.

2.Legislative Overrides: When courts misalign with parliamentary intent, as in MH or Cart, Parliament should pass corrective legislation, as it did in 2022. This reaffirms sovereignty without attacking judges.

3.Reform Judicial Review: Limiting the scope of judicial review, particularly in politically sensitive areas like immigration, could reduce perceptions of activism. Stronger ouster clauses, respected by courts, are essential.

4.HRA Review: Reassessing the HRA's mandate for judges to apply ECHR principles could curb value-based rulings while preserving human rights protections.

Judicial independence is vital, but so is parliamentary sovereignty. As Professor Michael Foran notes, legislation like equal pay laws intentionally tasks judges with policy-like decisions, but public backlash grows when outcomes defy common sense. Parliament must stop "passing the buck" to courts, as one legal figure put it, and reclaim its role as the supreme lawmaker.

The perception that judges have displaced Parliament stems from real cases where courts, empowered by the HRA and judicial review, have overridden government policy or stretched statutory intent. From asylum "bootstrapping" to Birmingham's bankruptcy, these rulings highlight a judiciary accustomed to making political judgments. Yet, Parliament's vague laws and inaction have enabled this shift. The solution lies not in vilifying judges, but in crafting clearer legislation, using overrides when needed, and reforming systems that blur the line between law and policy. Only then can Britain's constitutional settlement, where Parliament, not courts, holds ultimate authority, be restored, ensuring judges interpret the law, not make it.

https://www.telegraph.co.uk/news/2025/08/16/how-judges-came-to-rule-britain/