2- Murphy- Judiciary

Question 1

Define Common Law.

Answer 1

Law that is based on long-standing customs and traditions.

Question 2

Define mandatory sentences.

Answer 2

Sentences that are laid down in legislation to reduce judges discretion. Basically, when the government set minimum and maximum sentences for crimes.

Question 3

What do judges do?

Answer 3

1. Oversee court proceedings.
2. Interpret and apply the law.
3. Create common law
4. Decide sentencing
5. Chair public inquiries and commissions.

Question 4

Define Rule of Law.

Answer 4

The principle that everyone should be equal in the eyes of law. The 3 features of rule of law are;

1. No one is above the law
2. Everyone is equal before the law.
3. The law is always applied.

Question 5

Define parliamentary privilege.

Answer 5

A set of legal privileges intended to safe-guard MPs and peers from outside interference, notably the right to absolute freedom of speech within parliament.

Question 6

Define due process.

Answer 6

The proper conduct of legal proceedings involving in particular the respect for an individuals legal rights.

Question 7

Define judicial independence.

Answer 7

The principle that the actions and decisions of government should not be influenced by pressure form other branches of government.

Question 8

How is judicial independence maintained?

Answer 8

1. Appointment process (JAC not gov who appoints)
2. Security of tenure.
3. Pay.
4. Freedom from criticism.
5. Independent legal profession
6. Constitutional Reform Act (2005)
   - Removal of Lord Chancellor
   - Creation of Supreme Court

Question 9

Define judicial neutrality.

Answer 9

The absence of any form of partisanship or commitment. A refusal to take sides.

Question 10

How is judicial neutrality maintained?

Answer 10

1. Political restrictions
2. Legal training
3. Kilmuir rules- judges should not appear in media or criticise gov. policy
4. Not public figures

Question 11

Define civil liberties.

Answer 11

A range of rights and freedoms that belong to the citizen and mark out a ‘private’ sphere in a citizens life in which government should not interfere with.

Question 12

Define judicial review.

Answer 12

The power of the judiciary to ‘review’ and possibly overturn (happens in USA, but not in UK because parliament is sovereign, but can declare the government to have acted ultra vires) laws actions of of other branches of government and public bodies.

Question 13

Define ultra vires.

Answer 13

When a government has acted beyond their powers.

Question 14

Define a bill of rights.

Answer 14

A document that specifies the rights and freedoms of the individual, and so defines the legal extent of civil liberty.

Question 15

What are the 2 types of a bill of rights?

Answer 15

1. Entrenched Bill of Rights

2. Statutory Bill of Rights

Question 16

Define an entrenched bill of rights.

Answer 16

A bill of rights that is enshrined in ‘higher’ law and therefore provides the basis for constitutional judicial review.

Question 17

Define a statutory bill of rights.

Answer 17

A bill of rights that can be amended or repealed through the same processes as other statute laws (HRA 1998 is a statute of rights)

Question 18

Arguments for a bill of rights.

Answer 18

1. Accountable government.
2. Liberty protected
3. Educational benefits
4. Consensus on rights.

Question 19

Arguments against a bill of rights.

Answer 19

1. Rule by judges
2. Politicisation
3. A ‘rights culture’
4. Artificial rights

Question 20

What are the arguments for judicial review?

Answer 20

For- important way to check powers of governmental ministers and protect civil liberties.

Question 21

What are the arguments against judicial review?

Answer 21

Against- Gives UNELECTED judges too much power in shaping government policy

Question 22

Define judiciary.

Answer 22

A collective name used to describe the judges in the UK. It is the 3rd branch of government.

Question 23

What are the tree levels of courts in the UK.

Answer 23

1. High court
2. Court of Appeal
3. Supreme Court

further courts are then..

1. European Court of Justice
2. European Court of Human Rights.

Question 24

How do judges make law?

Answer 24

1. Declaring Common Law
2. Interpreting Statute Law
3. Developing Case Law

Question 25

Describe judges 'Declaring Common Law'

Answer 25

Where it is not clear what the common law is, judges make a judgement on what the common law is and how it applies. This interpretation is then binding on all other lower courts. e.g.

Question 26

Describe judges 'Interpreting Statute Law'

Answer 26

Sometimes statute laws are not clear so in some appeals the judge will declare what they think it means.

Question 27

Describe judges 'Developing Case Law'

Answer 27

Sometimes it is not obvious how statute law should be applied to a particular case. Judges decide how the law should be applied to a certain case, and then this interpretation is applied in all similar cases in lower courts.

Question 28

Why are judges/ the rulings they make politically important?

Answer 28

1. They can prevent the government/ any part of the state from abusing or going beyond its statutory power. 2. They enforce the European Convention of Human Rights and interpret the meaning of Humans Rights legislation. 3. They are part of the law making process

Question 29

How does the judiciary keep a check on government power?

Answer 29

1. Checks gov. power- ultra vires declaration 2. Upholds civil liberties/ rights - using the HRA/ECHR to judge cases 3. Upholds rule of law for all associations, checks gov. power by doing this- judicial review 4. Higher powers- non UK courts such as the European Court of Human Rights can overrule Parliament

Question 30

Why is judicial independence important?

Answer 30

1. The judiciary should not become to close with any body/ association in case they need to dispense justice to them. 2. Check on government power, and makes sure gov. does not make constitutional reforms to suit itself. 3. Can over-rule the 'tyranny of the majority'

Question 31

Why is judicial neutrality important?

Answer 31

1. Ensures protection of minorities/ widely unpopular groups. 2. Makes sure rule of law is upheld 3. Confidence to citizens that they will be treated fairly.

Question 32

What is judicial review.

Answer 32

When a senior judge(s) reviews a decision or policy adopted by a public body/ a law passed by Parliament based on whether the decision... 1. offends the European Convention of Human Rights e. g. Mental Health Act case, 2002 2. offends a principle of Common Law 3. the gov. acted 'ultra vires' e. g. Ahmed + Others vs. HM Treasury 4. if it offended natural justice or 'rule of law' and the individual or association did not receive equal treatment 5. if the correct administrative procedures were not followed

Question 33

How significant is judicial review?

Answer 33

Judgements in the courts are normally accepted as legally binding. However if the clash concerns incompatibility between the ECHR or Common Law, it may be ignored because parliament remains SOVERIGN.

Question 34

Why is judicial review important?

Answer 34

1. Helps to preserve rule of law 2. Checks gov. power 3. Makes public bodies accountable 4. Enforces ECHR

Question 35

How do the courts uphold civil liberties?

Answer 35

1. Judicial review takes place at the request of a citizen 2. Refer to and therefore enforce a parliamentary statute which protects a particular right. e. g equal opportunities legislation 3. They can refer to the HRA and the ECHR and decide if that right has been infringed 4. They can declare that common law has been breached and reverse a decision.

Question 36

Define a Fast Track Remedial Order

Answer 36

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Question 37

Define recusal.

Answer 37

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Question 38

Define extradition.

Answer 38

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Question 39

In which ways do judges uphold civil liberties?

Answer 39

1. HRA - codified set of rights 2. Making of common law- when judges interpret the law and bind courts further down they enforce civ. libs. 3. Growth of judicial review 4. Appealing to higher courts

Question 40

In which ways do judges not uphold civil liberties?

Answer 40

1. Courts cannot be proactive 2. ECHR/ HRA not legally binding. Parliament is still sovereign. 3. Parliament can pass new legislation.