What role has the language of legislation played in changes to the constitutional role of senior judges in British politics since 1960?

Some judges are born political, some seek out political power, and others have politics thrust upon them. This paper aims to show that the latter is the true description of developments in the constitutional role of senior British judges since 1960. The paper will outline the ‘unintended politicisation of the judiciary thesis’ which seeks to explain the increased political power of judges as a product of the increased enactment of ambiguous legislation by successive governments. This paper therefore adopts a historic institutionalist perspective, in order to move away from traditional accounts that explain changes in the institutional balance of British politics as being caused by the personal political ambitions of the judges themselves. The hypothesis tested for this paper is that legislation has become more ambiguous since 1960. A new methodology was required to test this hypothesis, with the result being a discourse analysis that has been used to objectively measure the ambiguity of legislative sections for a sample of 1,335 sections between 1960 and 2005. Results show with 95% confidence that legislation has become more ambiguous since 1960, with the 1980s and the 2000s showing the highest numbers of ambiguous legislative sections, at the time when strong Commons majorities allowed the government to pass a greater volume of legislation. However the 1990s showed the highest proportionate levels of ambiguity when government was hamstrung by a small Commons majority, and more had to be achieved from less legislation.