ELS PAPER 3 Flashcards

Question

judiciary training

Answer 1

Since April 2011 the whole process has been overseen by the “Judicial College” who also provide documents such as the Specimen Directions and Equal Treatment Benchbook for on the job guidance. The initial induction provides detail on how to run a court. There are three committees specialising in civil, criminal and family law that carry out this task. Most new judges should have a wealth of practical courtroom experience to build on this respect. Remember, the Tribunals, Courts & Enforcement Act 2007 says all potential judges have to be barristers, solicitors or legal executives with experience. The training will also include visits to penal establishments and meetings with the Probation Service to provide new judges with an in depth understanding of the types of sentences and their consequences. Sitting in conjunction with experienced judges and the availability of a mentor also provides support for new judges.

Answer 2

1. Retirement (usually at 70) 2. Resignation (often an “unofficial” way of dismissing a judge) 3. Removal due to infirmity (e.g. in a long term coma) 4. Dismissal (sacked!) Be careful to answer the question set. If it asks about “dismissal” alone, focus mainly on the fourth point and add a little on the unofficial aspect of the second point. An example of this was the resignation of Justice Jeremiah Harman. How a judge is dismissed depends on the type of judge that they are. The superior judges consist of High Court judges, Lord Justices and Supreme Court Justices. To remove them from office requires a resolution of the House of Commons, House of Lords and monarch under the Act of Settlement 1701 & Senior Courts Act 1981. Only one superior court judge has ever been removed from office and they didn’t even get a chance to use this procedure because “Jonah Barrington” had fled to France! The process for inferior court judges, i.e. circuit judges, district judges, etc. is set out in the Constitutional Reform Act 2005. The Judicial Conduct Investigation Office (JCIO) will investigate matters relating to any judge’s behaviour. The Lord Chief Justice can advise and issue “reprimands”. The Lord Chancellor (who is really the Secretary of State for Justice) can suspend.

Answer 3

Constitutional Reform Act 2005 Upholds rule of law Creates separate supreme court s.3 duty on ministers to respect independence Autonomy of legal profession Judges are usually former lawyers who are self-governing, i.e. there’s nothing like Ofsted Sub judice rule (comment is forbidden on a matter “under judgment”) Speaker can prevent comment in Parliament A charge “contempt of court” could even result in imprisonment Immunity from lawsuit - Sirros v Moore (1975) – if acting in good faith security of tenure Job security since Act of Settlement 1701 Once a judge, always a judge Convention states =no return to private legal practice if a “salaried” judge nemo judex en causa sua re pinochet Judicial Appointments Commission (JAC – selection on merit & not appointed by executive

Answer 4

fair trials – meets the requirements in Article 6 of the European Convention on Human Rights Re Pinochet public confidence - nsures rule of law – no-one can be above the law, e.g. government., monarch, etc R(Miller) v PM Facilitates judicial review & public inquiries -– allows actions of government to be legally scrutinised avoid totalitarianism – Montesquieu’s theory. No one should have ALL the power R(Miller) v Sec. State for Exiting EU

Answer 5

Advantages  Based on merit unlike the old system  Transparent – open public process  Lay people involvement  Facilitates separation of powers and limits role of executive in particular  More diverse intake into the judiciary thanks to rules allowing solicitors and legal executives to apply as well as Outreach Strategy of wider advertising and promotion of vacancies Disadvantages: x Sec. of State for Justice, i.e. “Lord Chancellor” still has a large say retaining considerable executive influence. x If the legal profession still doesn’t represent sexes and ethnicity fairly, the judiciary never can because of the entry requirements Tribunals, Courts & Enforcement Act 2007 x Most applicants will be former trial lawyers but being a good advocate does not guarantee you will be a good judge. x Invariably, judges will have reached a substantial age by the time they are appointed. Does this point and the one above suggest the need for “career” judges? x Will top QCs apply? – It could be a 90% pay cut!

Answer 6

the institutions of the EU and their functions are set out in what used to be called the Treaty of Rome but has been renamed as the Treaty of the functioning EU

Answer 7

Makes EU law often in conjunction with parliament - minister from each member state, dependent on issue involved - states take it in turn each 6 months to be president - most decisions= double majority rule -15/27 states (55%) - representing more than 65% of the EU population

Answer 8

proposes EU law enforces EU law - one commissioner per state, nominated by the state but sworn under oath to represent whole EU - one of the 27 is proposed as president by the council, currently Ursula von der leyen - EU parliament must approve nominations for the above

Answer 9

Makes Eu law in conjunction witch council or consulted where it has no power - elected by public in member states every 5 years - number of MEPS dictated by population of the member state - legislation passed by majority vote

Answer 10

Interprets EU law Article 19 TEU - 27 judges- one appointed by each member state for a renewable 6 year term, not to represent the state but bring an understanding of its legal system - assisted by 11 advocates general who provide initial opinions on cases - judicial role- ruling on disputes between member states - supervisory role- article 267 TFEU preliminary rulings

Answer 11

member states do not have to legislate to create enforceable EU legal rights

Answer 12

enforceable legal rights are created that EU citizens can use horizontally- against fellow citizens vertically- against a member state of government body

Answer 13

These are agreements made between member states. The most important of these is the Treaty on the Functioning of the EU. The individual articles of these treaties may be directly applicable and can have horizontal and vertical direct effect depending on their wording. Van Gend en Loos 26/62 In this early EU case, a Dutch company complained that its lorries carrying plastic from Germany to Holland were being stopped at the border and ordered to pay a tax. held:this was contrary to what is now Article 30 TFEU.

Answer 14

These are binding legislative acts and almost the EU equivalent of our domestic Acts of Parliament. For example, the hyperlink above right shows a Regulation setting out the EU rules on importing goods from outside the EU into a member state. Re Tachographs: Commission v UK 128/78 A Regulation of the EU required lorry drivers to install tachographs in their vehicles to ensure that they had sufficient breaks from driving during their working day. The UK left this to the vehicle owner’s discretion. Held: Under Article 288 TFEU, Regulations had direct applicability and direct effect. UK lorry drivers had to use the devices.

Answer 15

The member states of the EU, very often, have different languages and legal systems. As a consequence, a large proportion of EU law is left for the states to implement themselves using their own legislative processes. The states are set a goal to achieve and a deadline to do so. The EU citizen still ends up having the same rights in each state but through a variety of methods. In the UK, directives are commonly implemented using a Statutory Instrument (SI). For example, the Consumer Rights Directive 2011/83 was implemented by an SI called the Consumer Contracts Regulations (Information, Cancellation and Additional Charges) Regulations 2013 which increased the scope of s.11 of the Consumer Rights Act 2015 (see p234 Year 2 textbook) Crucially, member states are given a time limit within which to implement the new law. But what happens if they fail to meet this target?

Answer 16

Marshall v Southampton & South West Hampshire AHA (1986) The Equal Treatment Directive 76/207 prohibited discrimination on the basis of age with regard to the state pension. However, the UK’s Sex Discrimination Act 1975 specified that men could retire at 65 while women could retire at 60. The policy of the defendant was to enforce this but it was to Miss Marshall’s detriment as she wanted to work as long as her male counterparts and accumulate a larger personal pension. Held – Directives are not directly applicable but, as the defendant was a manifestation of the state, the directive could be enforced against them, i.e. they had vertical direct effect

Answer 17

In this case, Westminster City Council wanted to challenge the imposition of the Congestion Charge Zone. To do so, they sought to use a directive in a judicial review against the Mayor of London at the time, Ken Livingstone. Held – Directives do NOT have HORIZONTAL direct effect and could not be relied on by a governmental body against a government body.

Answer 18

This is a very important EU law case in terms of ensuring uniformity of law across all member states. Directive 80/987 required member states to create an insurance scheme to pay the wages owed to employees of businesses that had become insolvent. Italy neglected to do this. Frankovich worked for a private firm that had gone bust and sought to recover his losses from the state of Italy itself. Held – Compensation could be obtained from a state for failure to implement a directive where there was a causal link between their failure to do so and the citizen’s financial loss. This is the Frankovich Rule.

ELS PAPER 3 Flashcards

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