Lord Neuberger says ‘judicial aggrandisement’ on the rise at expense of politicians

President of the Supreme Court, Lord Neuberger said in a speech that judges have taken power from democratically-elected politicians by taking advantage of European and human rights legislation.

The judge said a generation who grew up in the “disrespectful” 1960s and 70s has taken advantage of weak politicians to increase its own influence.

In the speech which was made to mark the 800th anniversary of Magna Carta, Lord Neuberger described seven ways judges had applied “judicial aggrandisement”.

He included among them the use of European Union law and the Human Rights Act, which, he said, afforded judges a “quasi-constitutional function”.

He said: “Today’s judges grew up in the questioning and disrespectful 60s and 70s, and that affects the judicial outlook quite a bit.

“In that, judges are not wrongly indulging in their private opinions, but rightly reflecting the general fundamental values and assumptions of contemporary society.”

Another reason for judicial aggrandisement was given as the fact “the legislature is sometimes too divided or too uncertain to take difficult or unpopular decisions and the courts therefore may be tempted to step in”.

He said this in the context of assisted suicide, adding judges will step in if Parliament fails to act.

The maximum sentence for helping someone to die in England and Wales is 14 years but, Lord Neuberger said, this is frequently not enforced.

Referring to the case of Tony Nicklinson, he said: “The Supreme Court’s general message was that Parliament should properly face up to this issue, and if it did not the courts might have to step in.”

Lord Neuberger cited as other factors in judges’ increased power were devolution in Scotland and Wales; the rising use of judicial review; and the power of the office of Prime Minister, which has weakened the powers of MPs.

He added: “In case I appear to be suggesting and support judicial aggrandisement – or judicial activism as it is sometimes called – let me emphasise I am not. I am trying to describe, not to praise, what has been happening.”