Flashcards in Judiciary Deck (21):
criticisms against judicial neutrality
-Overwhelming majority- male, white, upper-middle-class and private school and oxbridge educated.
-Power of judiciary to 'review' and possibly over-turn laws, decrees and actions of the other branches of government and public bodies.
-In the UK judges cant overturn Acts of Parliament because of the principle of parliamentary sovereignty
-can determine lawfulness of actions - ultra-vires (beyond ones power) - judges increasingly willing to use ultra-vires
-2011- high court ruled Micheal Gove abused his power
Human Right Act (1998)
-Incorporated the European Convention on Human Rights (ECHR) into UK law (2000)
-widen capacity of judiciary to protect civil liberties and check the excersise of executive power.
-court interpret all legislation to be compatible with the European Conventions
-European convention establishes a wide range of rights: right to life, right from torture
-declaration of incompatibility eg rights of spouses to succeed tenancy in the event of a tenants death was extended to gay couples (2004)
supporters and criticisms of the HRA (1998)
-Strengthens ability of judges to apply the rule of law and uphold individual rights, including rights of unpopular minorities.
-educational benefits- made citizens more aware and assertive in protecting their rights.
-Allow judges to overstep their traditional role- through their interpretation of the HRA judges effectively able to 'rewrite' legislation.
-Abstract set of principles that would lead to confusion and bad decisions (torie view)
are civil liberties under threat?
- Growth on human rights culture amongst the senior judiciary, which has been reflected in a greater willingness of judges to challenge ministers
-impact of HRA has widened the ability of judges to intervene in Politics.
-Trend for gov to expand their own powers often at expense of civil liberties- Led to allegations of authoritarianism in UK:
-Anti terrorism, crime and security act 2001
-the terrorism act 2006
-Constitutional reform act 2005 created the supreme court in 2009
- strengthened the separation of powers:
1) removed law lords from HOL
2) Office of Lord Chancellor (head of judiciary, presiding officer of HOL and cabinet minister) fused judicial, executive and legislative together
-created judicial appointment commission-made senior judges more socially representative
bill of rights
-document that specifies the rights and freedoms of the individual and so defines legal extent of civil liberties
-entrenched bill of rights- enshrined in 'higher' law therefore provides basis for judicial review
-statutory bill of rights- can be amended or repealed through some process as other statue laws
bill of rights for VS against
ACCOUNTABLE GOV-entrenched bill of rights way of ensuring gov is based on laws, not wishes of ministers.
LIBERTY PROTECTED-Civil liberties would stand above executive and parliament
EDUCATIONAL BENEFITS- Strengthen the awareness of rights and individual freedoms throughout the political system
CONSENSUS ON POLITICS- already exits in UK foundation for Bill of Rights in the form of European Convention of HRA so introduction for Bill of Rights would be easy.
RULE OF JUDGES- Bill of rights turn judges into policy makers. Judicial tyranny as judges would make and interpret laws unfavourable as judges are unelected and socially unrepresentative
POLITICIZATION- Struggle to maintain judicial independence where rulings have policy implications
A RIGHTS CULTURE- individuals and minority rights would emphasize at expense of wider needs
ARTIFICIAL RIGHTS- don't benefit from wisdom of history and tradition unlike the rights enshrined in common law.
role of judges
PRESIDE OVER COURT PROCEEDINGS- ensure fair trail and source of specialist knowledge
-make sure the rules of the court procedure are properly followed
INTERPRET AND APPLY THE LAW- Can lead to conflicting interpretations by judges and by ministers.
MAKE LAW-Common law built on the basis of judicial precedent- judges in one case accept judgements in an earlier case as binding
DECIDING SENTANCING- Mandatory sentances allow politicians to enroach on the side of the judiciary
CHAIR PUBLIC ENQUIRIES- however in chairing inquiries judges come into close contact with ministers= might affect judicial independence eg Lord Nolans inquiry into standards in public life.
Rule of law
Law should 'rule', in the sense that it applies to all conduct or behaviours.
no-one is above the law
-everyone is bound by the law even ministers, public officials etc
-upheld through administrative law
-PM powers based on royal perogative not subject to judicial oversight
-parliament is soverign=can make, unmake or amend any laws so is above the law
-queen is not properly subject to the law
equality before the law
-all people should have the same legal rights and the same access to the legal system
-only wealthy can afford lawyers
-access to legal aid not always easy
-judges (from narrow and priviledged backgrounds) may be bias to women, ethnic minorities and poor.
law is always applied
-law cannot apply in certain circumstances but not in others
-people should not be penalized except through due process of law
-Not all crimes are reported and therefore legally addressed (most rape cases)
-police resources are limited so many crimes go undetected (speeding)
-trial by media- people punished without legal proceedings
branch of gov that is responsible for deciding legal disputes and which presides over the court system
legal redress available through courts
if people rights have been infringed they should be able to protect themselves through the court
-No entrenched bill of rights to protect fundamental HR
-HRA can be set aside by parliament
-access to european court of human rights is expensive and time consuming
actions and decisions of judges should not be influenced by pressure from other branches of government
how is judicial independence maintained?
APPOINTMENT PROCESS- Judicial appointments commission introduced greater independence into the process
SECURITY OF TENURE-Cannot be sacked so possibility of removal cannot be used to affect their decision making
PROTECTED PAY- Pay safeguarded from political interference and determined by an independent body so pressure cant be placed on judges to reach a certain decision
FREEDOM OF CRITICISM- Sub-judice- forbids people and politicians commenting on an ongoing case. MPs and peers forbidden to criticise court rulings.
INDEPENDENCE LEGAL PROFESSIONS- Judges appointed from ranks of lawyers and theyre not trained by the state.
ROLE OF LORD CHANCELLOR-used to be part of 3 branches of gov but after CRA (2005) the job split into 3 roles and he has to swear an oath to defend the independence of the judiciary.
criticisms against judicial independence
-increased willingness of ministers to criticise courts particularly in the case of Home Secretaries.
eg -1) 2003, David Blunket condemned release of 9 Afghan hijackers
2) 2010, May criticised refusal to deport 2 terrorists
^this has tested judicial indpendence
-evidence of greater judicial activism suggest determination on the part of judges to develop their own views of a proper application of law.
judges have no sympathy or ideological leanings
a range of rights and freedoms that belong to the citizen, not the state and therefore are specific to particular states eg freedom of speech