'Modern judiciaries end up as substitute legislatures or as subordinate agencies of the executive.' Discuss.

Whenever legislation seems to conflict with other legislation, there seems an apparent need to resolve the problems in a legitimate way. In order for people to act under a law, it must be made clear how the law works and what rights or duties they have under it. In the case of conflicting legislation, it is necessary for disputes to be solved, finally and categorically. This feature is seemingly the key way in which the judiciaries enter the political arena, in settling such disputes. In doing so, they will be coming under pressure from parties with political motives to interpret in a particular direction, and in such a way, they can be seen to be making political decisions, or further still, to be legislating.

As shall be seen, in states with strong written constitutions, conflicting laws are often between modern legislation and the constitution. Here, judiciaries are required to uphold the constitution until amended, usually requiring a special majority in the governmental bodies which passed the conflicting legislation by simple majorities. In such cases, parliaments can still be seen to be sovereign, it is just that their sovereignty is reliant on the huge majority required for constitutional amendment and the blocking of executive vetoes. For examples of such systems, I will focus on the US and post-war Germany, although, as will be discussed, the specifics of each system allow interesting observations to be made about the scope of the judiciaries. In contrast to this will perhaps be the British system. Here parliamentary sovereignty is complete with only a simple majority. There is also the assumption in UK law that when two statutes conflict the latter expression of parliament's wishes should be acted upon by the judiciary. As Bagehot put it, "there is nothing the British Parliament cannot do except to transform a man into a woman and a woman into a man". This does not mean that British courts are also obliged to ignore the actions of administrators, who implement parliamentary statutes. In such cases, it can be seen that the British judiciary can rise to the tasks of its counterparts in the US and Germany. Further, it is worth mentioning the shadow that has been drawing closer to the shores of the UK. This shadow has been in existence since 1951, when the European Convention on Human Rights was ratified (as a treaty obligation) by Britain. It draws closer as the convention is currently being incorporated into British law. Certainly it is too soon to judge the impact of this move (speculation has been to all extremes), but what seems to be the case is that the British judiciary will have a clear statute of rights which it could judge legislation against. The conflicts from this and how this would politicise the judiciary will be discussed later. Also to be discussed, something which applies to Germany as well, is the ability of the European Court of Human Right's ability to affect domestic policies, under the Convention. Such powers have been in existence since 1951, and so there is evidence of how this affects the system.

Before discussing the cases, we must set out how it could be judged that judiciaries act as substitute legislatures and indeed how they could be seen as subordinate agencies of the executive. Most of the general points I will make here will refer to the bulk of judiciaries in modern democracies. It is also important to note that in this study the 'judiciary' is meant to imply the top levels of judiciary in each county. In some cases many parts of the judiciary have these powers, but because of appeals, major cases usually find themselves in the upper echelons on the system. Some systems have distinct constitutional courts, in such cases on constitutional issues, it will be assumed that these are being referred to.

The first observation to make is that judiciaries do not have the powers to draft, write or propose statutes. Such powers are given to the other branches of government, or in more separated systems, exclusively to the legislature. Equally, statutes are unenforceable without the compliance of the judiciary. If a judge does to uphold a statute, then citizens and institutions are seemingly free to break them. It is however a judge's job to uphold statutes, so when it is deemed that statutes conflict, the judge will make a decision as to which statute takes priority. The statute that is not given priority is to all purposes vetoed by the judiciary. In a weak sense, this can be simply done by continually ruling against a statute so that it is obvious that it cannot be implemented. When such rulings occur, it would be inevitable that the other branches of government would amend such legislation in line with how the courts decree them to be in conflict. In such a way the courts could be seen as legislating, not directly, but in expressing what seems comparable to a veto they can force changes to legislation. In other cases, where the constitution allows, courts can rule certain statutes as void, having much the same effect as above, but in a slightly more direct manner.

To describe such cases as acting as 'substitute legislatures' is, however, seemingly too strong. The role of the court is to interpret previous statutes, whether in the form of constitutions or legislation. It cannot initiate legislation as a legislature can and further, certainly in the cases that will be discussed, they can only act when a case is brought before them to rule over. This is particularly the case in states (such as the UK and the US) which operate under common law, in which importance is given to judicial precedents in order to form a relatively consistent interpretation of statutes. In slight contrast to this are systems which operate under Roman or civil law, such as France and Germany, which give legislative codes greater importance in the interpretation of laws and are keener to present unified judgements (although this last point has been relaxed in Germany). This suggests that the judiciary has a function as a check on the powers of the legislature as well as a role which compliments the other branch by interpreting and applying the legislation that it generates.

The key factor which seems to be inherent in all discussions of the politicisation of the judiciary is the use of interpretation of statutes. It is not only when a court rules that statutes conflict that it can use political power. Also, by interpreting how statutes should be implemented they will be making laws. This is again of particular importance in judicial cultures based around case law. The obvious solution to this first aspect would be that legislatures should make better, clearer laws, which are less open to interpretation. The institutional bargaining of the legislative process means that this is often not possible, and so judges are left to make a decision as to what is meant. The result of this, because of the nature of why the legislation was weak would be that whichever side had judgement against their view would be expected to complain of the politicisation of the judiciary and claim that it is legislating. An interesting possible case of this sort, which is unlikely to go to the judiciary is the Good Friday Agreement in Northern Ireland. At the time of writing, the ambiguity put into the agreement made all sides feel that they were victors, but as the time for implementation nears, something must give. If an equivalent case were decided by the courts, they could not help but make a political decision. In making bad laws, the politicians are almost forcing the judiciary to settle the issues that they could not.

Such scope for interpretation is particularly relevant in relation to constitutions. Often these are purposely written to be vague, yet they over-ride any 'normal' legislation. Further still, constitutions are often dated, written in a different time, times when it would be seemingly impossible to think of how such measures would be implemented in our modern world. This gives the judiciary the scope to suggest that measures would need to be seen in their historical context and so give a modern interpretation of what was implied to happen. In both these sorts of cases, of clarifying ambiguities or putting statutes into a modern setting, the judiciary has scope to interpret. A feature that is common to all modern democracies is that judges are all mortal humans. They bleed when they are pricked, they laugh when they are tickled and they die when they are poisoned. As such it seems impossible that they could be expected to act completely impartially and in a perfectly neutral way. People do not exist in a vacuum and although they might be instructed to place aside personal beliefs, it would be impossible to suggest that they actually can do so. It is even unclear if it would be truly expected to do such a thing. Judgement is not a puzzle with an answer to be achieved. It is not something that could be done by a computer, analysing the law and saying 'yay' or 'nay'. As was expressed above, there are ambiguities in the law, judges would be expected to use a degree of humanity to give a solution to a conflict. The problem is that humanity is inescapably linked to beliefs and beliefs are often in conflict, a conflict which is called politics. A decision or interpretation is therefore inevitably going to be a political decision. When a political decision is linked to legitimate authority decreeing how people should act, it could be easily be termed as legislating.

The point that I wish to make on this issue is therefore two fold. Firstly that it can be strongly claimed that the inability of a court to initiate legislation directly and the supremacy of other branches (especially through special majorities) means that a court could never be seen as a substitute legislature. It can certainly not do as a legislature does in these areas. The second point to make is that whilst it is not a substitute legislature, in interpreting the law (as it must do), it will inevitably make political decisions which will be legitimate in the state. If it is wished to call such action legislating, there are strong grounds to do so. In short, the judiciary is not a legislature, but it does legislate.

The second point raised is the extent to which the judiciaries act as subordinate agencies to the executive. Its relation to the executive has various facets. The most important point to make is that implementation of judicial decisions is often reliant on the powers of the executive. Whilst constitutionally there might be legitimacy given to rulings, it is often hard to enforce them without compliance of the other branches. Judicial funding is limited to the maintenance of the courts, not to implementation, something which is expected to be carried out by other branches. In this way it could be claimed that the judiciary is reliant on the action of the executive for judicial powers to be realised. This would suggest a degree of subordination of the courts. In many ways, however, implementation of interpretation is done through lower courts carrying through higher court rulings, so executive might is not necessary.

Another way in which it could be claimed that the judiciary is subordinate is in relation to the democratic process. It is impossible to generalise about the mechanisms for appointing judges, but it is clear that they are far more removed from the people than the selection of the executive. This means that although sometimes courts using their political powers through interpretation can be seen to be a useful check in democracy, in the long-term they must fall into line with those mandated through the will of the people. However fuzzy an executive's electoral mandate is, it will always trump that of the judiciary. In order to avoid reform, the judiciary must accept its place as subordinate to the elected branches. The sovereignty of the legislature often underpins this.

In contrast to this, the judiciary still has the ability to act against executives. The process of judicial review, which is common to most modern democracies and certainly the three to be mentioned in this study is pivotal to this. In such processes, it is possible for the executive to be accountable to the law for any of its actions, as would any other defendant. Because executives are involved in implementing laws, this is not as straight forward as might seem. When implementing laws, they must not go beyond that which is demanded by the statute they are implementing. This of course, because of the ambiguities suggested above, means that the executive must interpret how the statute is to be enacted. If the executive and the judicial interpretation of the statute contradict, the courts are able to find against the executive. Both have to interpret how a statute was intended, but the judicial interpretation takes precedence. In cases where the executive and legislature are closely linked, such conflict between statute and executive-will might be expected to be less than in those areas where there is clear separation between the branches. Obviously, in states with codified constitutions, the judiciary is also able to rule against executive actions that contravene the constitution. Again, different interpretations between the branches would result in judicial supremacy. In this way, the claim that a judiciary is subordinate to the executive would be dismissed.

With these generalisations being made, it is now necessary to look closely at the judiciaries of the UK, the US and Germany. Some basic important factors should be highlighted that link these examples. The US and Germany have formal, written constitutions which the courts are charged to uphold. Both are also federal states, with the courts charged with settling both disputes between states and in ruling over disputes between federal and state governments. Interestingly, both these points could soon apply to the UK, through the adoption of the Human Rights Act and devolution to Scotland and Wales. These will be discussed, but in the mean time, it is important to note the difference of the UK in these areas.

The United States Supreme Court was the first of all of these states to implement a degree of judicial review. Judicial review is important for both parts of this question as it can decide on the interpretation of laws with regard to the constitution, thus, for the reasons outlined above can seen to be legislating. Also, the court can use judicial review to act against those that administer statutes, such as the executive, so going against the claim of subordination to this branch. The effect of split party government in the US is that often legislation, created through compromise is often ambiguous in precise meaning. This gives the court greater scope for interpretation, as even those responsible for forming the statutes might not be agreed on its implementation.

Article VI, Section 2 of the US constitution, the supremacy clause, gives rise to the pre-eminence of constitutional measures over other statutes. In upholding this, when cases come before them, judges follow a role as the guardians of the constitutions. Since 1937, there have been almost eighty provisions of congressional enactments that have been deemed unconstitutional by the Supreme Court. All but thirteen of these have related to infringements of the rights and liberties guaranteed by the constitution. Such action is an effective veto by the courts. As can be seen in Presidential relations to Congress, a negative veto can be an active weapon in forming legislation, and so must be seen to be the case with the judicial veto. Further, the threat of such action acts to prevent laws being made that might invoke judicial wrath. Some might call this legislating by the judiciary, but surely, it is merely upholding constitutional government. If a legislature changes legislation in order to prevent it being vetoed by the Supreme Court, it is not acting under political pressure, but instead acting so that it does not create legislation that is unconstitutional. Unlike the Presidential veto, there has to be reason for a judiciary to declare a statute void.

The powers of judicial review are not explicitly stated in the constitution, although there seem ample provisions to allow it to stand. The case that started such actions at federal level was that of Marbury v Madison in 1803. This was under the leadership of Chief Justice John Marshall. It is important to note that previous to this, such action had been undertaken at state levels on ten occasions. The actions were based on the Judiciary Act of 1789 which gave courts the power to 'reverse' provisions of laws that contradicted the constitution. The result of this precedent was dramatic and different courts have interpreted the powers differently, so legislating to a greater or lesser extent.

The first modern example to discuss was the 'Nine Old Men' who were a great stone in the shoe of much of the New Deal legislation. This was seen as possibly the greatest crisis of judicial review, when in two years, the Supreme Court declared unconstitutional thirteen pieces of legislation. Had these decisions been able to stand, this could be seen as the judiciary acting against a united executive and Congress. If they weren't setting themselves up as a rival legislature, they were certainly acting to stifle the existing one. Luckily, a constitutional crisis was averted by the ability of the courts to not only over-rule other branches' decisions, but also their own. This became known as the 'switch in time that saved nine'. It is interesting to note that even in a system operating under common or case law, the Supreme Court has over-ruled almost a hundred and seventy constitutional law decisions. Some show this era as the use of judicial interpretation in an attempt for the Court to enact its reactionary ethos. However, not only was there room for the Court to interpret legislation, but it would be expected that such interpretation would be made as a check on strong executive power. As was suggested above, in the long-run the Court did move back in line with the elected branches.

The second important case when it was clear that the Supreme Court was following a radical path was the case of segregation in the 1950's. Although, the Court did seem to eventually fall back into line and not retain this crusading action, it was able to shift the status-quo, importantly, against the grain of public opinion. Perhaps the unaccountable (excluding personal high crimes and misdemeanours) nature of the position of the judges enabled them to act in this way, so allowing them to legislate in areas where accountable, elected officials were unable to. It is clear that the watershed that was created by the decisions of the Warren Court, starting with Brown v Board of Education (1954), led to statutes, such as the civil rights act of 1964 and an acceptance of a shift in social culture. In reality, until this Congressional legislation much of the result of Brown was unenforced. Nevertheless, the Court made a decision, masked by reference to the constitution, which was profoundly a legislative one.

There is a major problem in looking at this case objectively. The results of the Court's action were good, but this does not mean that the Court did not overstep its role. As Abrahams suggests, judgements of whether the courts are legislating or interpreting depend greatly on 'whose ox is being gored'. Would we wish for example to allow the excuse of interpretation to the Supreme Court which upheld, in the Dred Scott case (1857), slavery? I find it hard to say that Warren's court was wrong to do as it did, but equally have in my mind a thought as to whether the creators of the 14th Amendment really would have gone against segregation; interpreting this would surely be the job of the Supreme Court. If it strayed too far from strict interpretation, it might indeed have acted as a substitute legislature, a feature that is only good for as long as you approve of its decisions.

Although legislative sovereignty is not normally associated with US government, I believe that the ability to make constitutional amendments moves strongly in this direction. This shows that the judiciary could never be a true substitute for the legislature. Examples of court decisions being over-ruled by these means include the formation of the 13th, 14th and 15th Amendments which reacted to the decision in the Dred Scott case, as well as the 11th Amendment, over-ruling the case of Chisholm v Georgia (1793) concerning court jurisdiction. This power, however, is used rarely. This is mainly because if it is seen that the other branches are unaccommodating to judicial rulings, they can be reversed by the courts themselves, thus matching predictions of long-term alignment of judiciaries with elected bodies.

Another important feature of a legislature is the function as a check on executive power. In this way, through judicial review, the Supreme Court can rule against the administration of statutes. This does not, however, mean that the Court is acting in this role where Congress doesn't. Both of these branches act to check the executive. In the extremely separated system of the US, the branches act in all combinations against each other, and this function is expected in the constitution. To suggest that by checking the power of the executive, the courts are acting in an area they are not assigned would therefore, I believe, be false.

In this respect they can also not be seen as subordinate to the executive simply because they often agree with it. It has been said that because Supreme Court placements originate from the President, they are likely to side with them. Presidents, however, last a maximum of eight years (to be pedantic, they have the capabilities of ten), but Supreme Court judges have a life-time tenure. Added to this, they must be approved by Congress, which post-war is typically of a different party to the President. For this reason it is unlikely that there will be much executive control.

Where they do however need the executive is in implementation. This was made as a general point, but as was seen in the inability for much to occur, on the ground, following the segregation rulings until legislation was passed, it is clear that such help is necessary. This does not make the Courts subordinate, but simply dependent, in much the same way the other branches are dependent on the judiciary in order to enact their policies.

The next case to look at is that of Germany. The German Federal Constitutional Court, the Bundesverfassungsgericht, is quite different from the Supreme Court in the US or the Law Lords in the UK. This court is purely there to uphold the Basic Law, Germany's constitution and does not represent the highest criminal or civil court in the country. That role goes to the Federal Court of Justice, to which cases from lower courts are appealed up to. Nor is the staffing of the Bundesverfassungsgericht (BVG) similar to the cases elsewhere. Appointments are made for single twelve year stretches into two senates of eight members. Only two of the members on each senate need to be judges from other federal courts and so others are often civil servants, party officials or other administrators. They are selected by electoral colleges in each of the chambers of parliament. Because of the distinct party make-up of the German Parliament, appointments are made generally on partisan lines. It is therefore not a great surprise to note that the body is seen greatly as a partisan tool.

Again, the court cannot form legislation, but it can declare legislation unconstitutional and so void. Much the same as above can therefore be suggested in relation to how political the decisions that it reaches are. Again, it cannot originate a case of its own initiative, but instead it must be brought to the court. There are three ways in which a case can find its way to the Constitutional Court. The first of these strongly suggests that there is some power to the view of the court as a form of legislature, this is the abstract judicial review.

The abstract judicial review can be brought against any legislation in the process of becoming law by a Land government or by a third of the Bundestag. In the vast majority of cases, abstract judicial reviews side with the government and is widely seen to be used as a partisan ploy. Even when being used by the Lander, it is clear that partisanship, rather than constitutionality is at stake. Because of the partisan nature of appointments to the Court, it is also acceptable to suggest that such ruling could be made on partisan lines.

The other forms of judicial review are concrete review and constitutional complaints, the later being by far the most common. Both there are open to all the objections discussed of interpretation. In concrete review cases, a judge in another court will halt a trial and ask the Constitutional Court for clarification on a constitutional issue. Constitutional complaints are made by individuals who believe that their rights are being breached by state or federal government. Most of the Court's rulings are unanimous.

The case of abortion has also been one that has highlighted the potential of the judicial branch. This was the case in the US with the Roe v Wade (1973), although in Germany the Court was seen to be pro-life, and in the US, the Burger Court was seen to be pro-choice. This was seen in 1975 when it struck down a statute permitting abortion by demand in the first three months of pregnancy. Although the Constitutional Court eventually retreated under political pressure, by allowing abortion when in the health interests of the mother, it still showed some legislative teeth in radically interpreting the Basic Law.

The strength of the executive (through its majority in the Bundestag) to appoint judges (although the judicial tenure is longer than the Chancellor's) means that there is some credence to the view that it might be subordinate. Again, there is also reliance of the executive to enforce BVG decisions, but this is limited as the supremacy of court rulings are accepted. There is some suggestion that cases such as the banning of the Communist party in 1956 were in response to pressure from Chancellor Adenauer, but this relation is far from complete. In seven out of nine direct federal-state conflicts, the BVG supported the Länder. Further, when in 1993 the Bundesrat and Federal government both petitioned the Court to declare the Free German Workers Party unconstitutional under Article 21, the Court ruled against the executive. This suggests that the case for subordination is not complete.

A feature throughout German politics in the lack of radical initiatives taken by policy makers. The entanglement culture of German politics means that conflicts between groups are hard to spot. If therefore it seems that the BVG is less active against the executive than the US Supreme Court, it might be, not because of subordination, but instead that the German executive is less likely to introduce policies that are prone to such attacks.

The focus of this discussion has been on the BVG, this is because in cases where statutes conflict the other courts (culminating in the Federal Justice Court) will interpret legislation according to the most recent legislation, or on constitutional issues ask for a concrete judicial review. As already suggested, the lack of radical policy in German politics, coupled to the legal training of the bureaucracy means that radical interpretations of basic statutes are difficult to make.

The last point to make is with regard to the European Convention on Human Rights. Because of the clear Basic Law, which largely corresponds to the Convention, the European Court for Human rights seldom conflicts with the rulings of the German judiciary. Although, as a treaty, the German constitution could over-ride the decrees of the European Court, to save embarrassment, it largely supports much of its actions.

The last case to look at is that of the United Kingdom. As has been stated above, the basic tenant of the UK political system is the sovereignty of parliament. A court is expected to interpret the law according to how it was intended. This has been especially the case since Pepper v Hart in 1993, when it was deemed that judges should look through parliamentary debates in order to fully understand the intentions underlying the statutes. In matters of statutes conflicting with one another, the later statute should be seen as the wishes of parliament. There is no supreme constitution to judge statutes against and so less of a scope for judges to interpret measures in a radical political manner, such as in the US's Brown case. This does not mean that British judges do not interpret or indeed that their interpretations are not binding. The difference is that in conflict with the other branches, the others win. This is due to legislative sovereignty, or by executive use of this legislative sovereignty which it largely controls. If there is a judicial decision a government dislikes, new laws can be made to void the judicial ruling. In this sense the judiciary has limited power to legislate compared to the countries with written constitutions.

The next role of a legislature is that of being a check on executive power. To a large extent, the British Parliament fails in this role, especially under huge government majorities. The courts can therefore have a role in making sure that the executive doesn't overstep the powers given to it by parliament. The problem is that if the executive controls parliament, then it will be setting parameters for its own action. The courts can nevertheless act in cases where it is thought that the government exceeds its powers to rule actions ultra vires. An example of this is the High Court's ruling against the Thatcher governments attempts to ban trade unions from GCHQ on the grounds that it violated natural justice. This was later overturned by the Court of Appeal, but such cases set a precedent that the courts had a right to scrutinise government through judicial review. The ability of the judiciary to act as an independent check is compromised further by the role of the Lord Chancellor. The Lord Chancellor is the antidote to anyone under the illusion that the UK is a separated system of government. He is a member of the House of Lords, a member of the executive and head of the judiciary, eligible to sit as a Law Lord. Such mingling of interests suggests that there is no body in the UK capable of performing the check function of the executive that might be expected of a legislature in a separated system.

Courts are more willing to use judicial review in cases of local government. The case of Bromley Council v Greater London Council (1983) highlighted this. Although the case went in support of central government (who was the backbone behind Bromley's action), the ruling stressed the right of the courts to rule in such matters. This case, surrounding the GLC's cheap-fares policy could be seen as nothing but a political decision, especially with no background constitution to refer to. By showing that it could work in these areas, the courts were giving themselves the right to legislate (in the interpretation sense suggested above). This marks something which is key to politics in the United Kingdom, namely the evolving roles of the institutions over time.

Also relevant is the European Convention of Human Rights. This was ratified by the UK in 1951. It is implicit that ratification was akin to any other treaty and countries are bound to it only for as long as they wish to be. This therefore preserves the sovereignty of parliament, as parliament can decide to leave the European Court's jurisdiction. This, however, is unlikely and the European Court of Human Rights has therefore powers to demand reparations in regards to cases involving the UK. Compared to the Convention, it might be therefore suggested that de facto parliament is not sovereign. The European Court can therefore act as the US Supreme Court does. By continually ruling against a particular law, the judiciary could force it to be changed. This must be seen as an effective veto, bringing up all the arguments about legislating that were used in previous discussions.

In the thirty cases that involved the UK between 1975 and 1990, twenty-one found breaches in the convention by the UK. These included McCann v UK (1996) which held against the British services for shootings of unarmed IRA suspects in Gibraltar and Tyrer v UK (1978) in which corporal punishment in the Isle of Man was deemed against the Convention, although no parliamentary action was taken on this matter. The government does have a right to clear action that it believes might be in contravention with the European Commission before enacting, such as the imposition of habeas corpus in relation to terrorism in Northern Ireland. There have also been various obvious cases of British law being changed in response to such decisions. These include the Interception of Communications Act 1985 in response to the case of Malone v UK (1984) regarding phone tapping. Such action suggests that the European Court is able to indirectly legislate in the United Kingdom. Further, the perceived threat of such action might shape legislation being framed. It is also worth mentioning with regard to the European Court that short of the ability to leave the treaty, there is little control that the British executive has over this court and therefore hard to see the court as a subordinate agency.

The incorporation into British law of the Convention, currently in progress as the Human Rights Bill will have debatable results. One interpretation is that there will be little impact, it will simply mean that the British courts will do the same job as the European Court have been doing since 1951, save all parties involved time and money. Although there will be the ability for judgements against the executive, these would be within the sphere of current judicial review. There can be no provisions in the Human Right Act for the statute to need special majorities to be amended, or that it will always take precedence over other legislation. This might be implied, but it seems unlikely that statutes could be deemed 'void' or 'unconstitutional' as they might in Germany or the US. It must be noted that legislative acts cannot be declared ultra vires in the way that administrative acts can. In this way the adoption of the Convention will not be a large change in institutional standings in the UK, but might instead simply increase the case-load of the Law Lords as they take on much that would otherwise have gone to Strasbourg. It might therefore be the British judges doing more of the judicial legislating in the UK, but the effect on the system would be much the same. Under these circumstances it would be erroneous to suggest that the Law Lords could act as a substitute judiciary.

An interesting case that might also arise relates to devolution. Again, the doctrine of parliamentary sovereignty is supreme and any powers Westminster gives, it can also take back. It is, however, unlikely that is will happen, with all major parties currently supporting devolution. Disputes between the Scottish and Westminster parliaments could be likely to come to the courts. In such actions, the courts would need to interpret legislation in a way akin to a Federal court. This would probably involve further legislating by this body, although there is still a feeling that this would simply be a larger-scale version of mediation of the disputes between local and central government which currently occur.

The British system, with supremacy of a legislature which is controlled by the executive, does suggest that it would be impossible for the judiciary to act as a substitute legislature. Even, if it tried, that it could be easily stopped. Its powers of judicial review of the executive are there, yet largely unused (because mainly of the link between the executive and legislature) and so could be seen as subordinate to it. It is, common with the other countries, also dependent on the executive to implement its decisions. The impartiality and neutrality traditionally associated with the British judiciary can therefore be seen as simply obedience of the judiciary to the supremacy to the other organs of government.

In all, the generalisations made about judiciaries in modern democracies seem to comply with the cases presented. The theme that seems to come through is not of judiciaries as substitute legislatures, but instead bodies that legislate in a different way and in response to problems with legislation. This is inevitable due to ambiguities of statutes and the impossibility of genuine neutrality. In some cases, however, the judiciaries do seem able to radically alter policy in a way that does seem to be a stronger sense of legislating, such as through abstract judicial review in Germany, or in the segregation cases in the US.

With regard to being classed as substitute legislatures in their role in balancing political dominance of the executive, I believe that this is a role of the judiciary. So, by carrying it out, it is not moving into a function of the legislature. In many cases also, it could be seen to be clear that the judiciary is ineffective in such endeavours.

The matter of whether the judiciaries are subordinate to the executive is harder to judge. In all the examples is a degree of judicial review in which the courts have the power to deem administrative action illegal. However, in all three cases there is also a dependence on the power of the executive for the implementation of court decisions. This dependence often goes both ways and so the subordinate claim would be unjustified. Although, in the German case, because of the political nature of appointments there does seem to be some credence to this view. As too is there in the case of the UK, when a strong parliamentary majority for the executive can give the executive the unchecked powers of parliamentary sovereignty. This has the result of making all other institutions, including the judiciary subordinate.

A last point to make is in relation to what seems to be the increased use of judicial review in the modern era. One explanation to this is that as central government expands, so it affects more people, so treading on more toes. This gives rise to greater numbers of conflicts between government and individuals or organisations. Such a trend might not necessarily be a result of a changing role of the judiciary, but instead due to the expansion of government.