Unit 2 revision booklet III Flashcards
2
Evaluate the view that the appointment of ministers is the Prime Minister’s most important role - YES
- PM has power to appoint or dismiss all government ministers, whether in the Cabinet or outside. Ability to ‘hire and fire’. Patronage can strengthen a PM in two ways. Firstly, it can allow a PM to appoint loyal supporters, especially if they support the ideological stance of the PM. In the same way, the PM can control rivals by either keeping them silenced in the cabinet by the convention of Collective cabinet Responsibility, or remove them from the cabinet entirely. Secondly, the power of patronage enables the PM to control the careers of backbench MPs who aspire to Cabinet level, which therefore creates a loyalty among backbench MPs. There is a large payroll vote of MPs who serve as junior ministers and PPS. Party loyalty amongst backbench MPs enables the PM to pass legislation in Parliament.
- However….The ability of the PM to hire and fire as they wish can be limited by political constraints – by the need for balance of different factions in the party; representing different groups in Cabinet; keeping enemies within the cabinet or under Coalition government.
4
Evaluate the view that the appointment of ministers is the Prime Minister’s most important role - NO
- Direct government policy
As a central figure in the core executive, the PM sets the direction of policy and sets the core goals. They have developed institutional supports to help direct their role as PM, such as the Prime Minister’s Office, the Cabinet Office and the appointment of many special advisers.
However…. This role is hampered by the relative small size of these departments compared with other government departments, and the ability of Ministers or the Treasury to work against the PM.
- Manage the Cabinet
PMs have the role of managing the Cabinet and cabinet system. This is through chairing Cabinet meetings and deciding when and how long they will be, plus their nature. In the 1960s and 1970s, Cabinet meetings were lengthy affairs. Under Blair and Cameron they would often last 30 minutes. Blair preferred the informal ‘sofa government’ of bilateral meetings. Management of the Cabinet is important as it allows the PM to harness the decision making process and authority of Cabinet to their own ends, and therefore is as important as patronage (link to question) as they are able to get their policy agenda through.
However… the ability to manage the cabinet is conditional on the support a PM has within the Cabinet and in the wider party (which may connect to the power of patronage!). Ministerial resignations may damage their ability to fulfil their role.
- Control Parliament as party leader
The role of Party leader underpins all other roles and powers of the PM. As party leader, the PM gains authority as ministers recognise that loyalty is with the PM, not them. Party members recognise that the opinion of the party rests with the individual impression of the PM, therefore they will be loyal. Backbench MPs recognise this too and thus the PM is able to command a disciplined majority in Parliament. However,…. Party leadership role is dependent on economic and electoral success. It can easily be removed, (as Thatcher and Blair found out and as May is struggling post 2017 election) no PM can survive without party support. A PM must focus on this role due to the dire consequences of not, however party support may be helped by patronage (connect to question).
- National leader
The PM is elected by the people to represent the nation on the world stage and at times of crisis or in response to major events. May has demonstrated that this can work either against her or for her with Grenfell Tower and the Salisbury poisonings. Johnson is displaying National Leadership during the Coronavirus epidemic.
A and others v Secretary of State for the Home Department 2004 (also known as the Belmarsh 9 case)
A human rights case heard before the House of Lords (before the independent Supreme Court was established). It held that the indefinite detention of foreign prisoners in Belmarsh without trial under section 23 of the Anti-terrorism, Crime and Security Act 2001 was incompatible with the European Convention on Human Rights. The UK government adhered in the ruling, which is a good example of a successful ‘declaration of incompatibility.’
R (Nicklinson) v Ministry of Justice (2014)
A judgment by the Supreme Court of the United Kingdom that considered the question of the right to die in English law. Tony Nicklinson had suffered a major stroke in 2005 and had described his life as a ‘living nightmare’ ever since. He killed himself after the failure of his High Court of Appeal case failed, but his wife continued the case up to the Supreme Court. The supreme court has upheld the ban on doctors helping patients to end their lives, but ruled that judges do have the “constitutional authority” to intervene in the debate on the basis of the ECHR. However, the judges believe it’s an issue that parliament should legislate on, rather than be decided by judges. The ruling challenges parliament to re-examine the predicament of those who are severely ill and wish to die but cannot do so without medical assistance – asserting parliamentary sovereignty. It’s a good example of the court not wanting to overstep.
Miller Case 2017
R (Miller) v Secretary of State for Exiting the European Union was a UK constitutional law case decided by the Supreme Court on 24 January 2017, which ruled that the UK Government may not initiate withdrawal from the European Union by formal notification to the Council of the European Union as prescribed by Article 50 of the Treaty on European Union (i.e. activate Article 50) without an Act of the UK Parliament permitting the government to do so. The case was a landmark one because it reaffirmed the sovereignty of parliament, and clarified the government’s prerogative powers around withdrawing the UK from Treaties. Miller (2), or R (Miller) v The Prime Minister (2019), was one of two cases bought up to the Supreme Court about prorogation, alongside a case from the Scottish Court of Appeals
Prorogation Case 2019:
R (Miller) v The Prime Minister and Cherry v Advocate General for Scotland was a three-day emergency hearing to consider the appeals on 17 September 2019. Since Parliament was to be prorogued for five weeks and reconvene just 17 days before the United Kingdom’s scheduled departure from the European Union on 31 October 2019, the move was seen by many opposition politicians and political commentators as a controversial and unconstitutional attempt by the prime minister to avoid parliamentary scrutiny of the Government’s Brexit plans in those final weeks leading up to Brexit. Due to the significance of the case, the maximum eleven of the twelve Supreme Court justices sat to hear the appeal. The eleven-justice panel of the Supreme Court ruled unanimously that the prerogative power of prorogation was justiciable (was a matter to be dealt with by the courts) and the ongoing prorogation of Parliament was both unlawful and void. It was a judgment of huge importance with major implications for our system of government in which the court set down a ruling to stop constitutional players, i.e. the government who don’t play by the rules. Constitutional historian Vernon Bogdanor, said that the judgment reaffirmed parliamentary sovereignty.
Heathrow Airport Expansion (2019):
The government’s decision to allow the expansion of Heathrow airport by building a third runway was unlawful because it did not take climate commitments into account, the Court of Appeal said. Heathrow said it would challenge the decision at the Supreme Court, but the government said it would not appeal. The judges said that in future, a third runway could go ahead, as long as it fits with the UK’s climate policy. The case was brought by environmental groups, councils and the Mayor of London. Friends of the Earth, one of the environmental groups that brought the case, said the ruling was “an absolutely ground-breaking result for climate justice”. This case is a good example of government policy being blocked by the courts, but also a great example of Pressure Groups using the courts to achieve their aims.
4
Rule of Law:
One of the fundamental principles of the UK’s unwritten constitution. Best explained as a series of subprinciples:
- No one is ‘above’ the law
- Equality before the law
- The law is always applied
- Legal redress is available through the courts
4
Civil Liberties:
- Mark out the ‘private sphere’ of existence which belongs to the citizen, not the state.
- Are ‘negative’ in the sense that they demand non-interference from the government
- The classic civil liberties are: Freedom of Speech, Freedom of the Press, Freedom of Religion and Freedom of Association.
- Civil liberties are often confused with Civil Rights. The former are freedoms from government; the latter are generally ‘positive’ rights (e.g. rights to vote etc)
5
Judicial Neutrality:
- This refers to the impartiality of judges, both politically and personally in the way that they conduct themselves in the courtroom.
- Neutrality is the absence of any form of partisanship or commitment.
- In the case of the judiciary it implies the absence of political sympathies or ideological leanings.
- In practice this means that judges must ensure that their own views and beliefs do not affect their professional behaviour.
- Judicial neutrality is essential if the Rule of Law is to act properly.
5
Human Rights
- These are rights to which people are entitled by virtue of being human.
- They are universal in that they belong to humans everywhere.
- They are fundamental in that they are inalienable.
- They are absolute in that they can’t be qualified (i.e. they must be fully upheld in all circumstances).
- They have formed part of international law (e.g. UN Declaration on Human Rights & European Convention on Human Rights).
4
What is Judicial Independence?
- Means independence from the executive and parliament in accordance with Montesquieu’s Separation of Powers doctrine.
- Judges can then apply the law as their own experience and legal training dictates, rather than as ministers, civil servants or parliamentarians would wish.
- Judicial independence is therefore a vital guarantee of the rule of law.
- In most liberal democracies the independence of the judiciary is protected by their security of tenure (the fact that they cannot be sacked) and through restrictions on the criticism of judges and court decisions.
What is Judicial Review?
This is the power of the judiciary to ‘review’ and possibly invalidate laws, decrees and the actions of other branches of government, notably the legislature and executive. It uses the principles of Ultra Vires (beyond the powers) and Natural Justice to do this. The Judicial Review Act 2022 hasmade it more challenging for Judicial Reviews to be heard.
5
The role of the judiciary
- The judiciary is the branch of government that is empowered to decide legal disputes. The central function of judges is therefore to adjudicate on the meaning of law and to dispense justice. 12 judges sit in the Supreme Court and are the top judges.
- Judges interpret and apply the law. Although, in theory, judges apply ‘the letter of the law’, they are able to exercise some discretion in the way they interpret statutes.
- Sometimes judges also construct law through precedent. Judge made law is called Common Law.
- Judges are also frequently used to head up Public Inquiries e.g. the death of David Kelly (Lord Hutton) and the death of Stephen Lawrence (Lord MacPherson).
- Judges are involved in the process of Judicial review which is when they review decisions by the state or any public body in relation to its citizens (e.g. Herceptin Case).
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How judicial independence is maintained
- Judges enjoy security of tenure. This principle says that judges cannot be removed from office on the grounds of the kind of decisions they make (except in cases of corruption). It follows, therefore, that judges are free to make decisions without fear of dismissal even if such decisions offend the government.
- There are conventions which protect the criticism of judges by any servant of the government (‘contempt of court’). This rule is designed to prevent any political pressure being placed upon judges.
- Judges are drawn from an independent pool of expertise. All senior judges must have enjoyed a lengthy career as courtroom lawyers which means that they are accustomed to the principle that cases must be judged on the strict basis of law.
- Since April 2006 the head of the judiciary has been the Lord Chief Justice and not the Lord Chancellor. This ends the Lord Chancellor’s unique role of having a foot in all three branches of government.
- The role of the Lord Chancellor in appointing judges ceased altogether in April 2007. The Judicial Appointments Commission is now responsible for the vast majority of appointments.
- A Supreme Court has been operational since October 2009. This ended the fusion of powers brought about by the practice of the Law Lords playing a legislative role in the House of Lords.
4
How judicial neutrality is preserved
- Political Restrictions. Judges are not supposed to engage in open political activity.
- Legal Training. The extensive process of legal training is designed to enable judges to focus entirely on legal considerations.
- Accountability. Senior judges must explain their rulings, highlighting, in the process, the points of law that have affected them.
- Not Public Figures. Judges have traditionally been discouraged from speaking out on political matters and from being involved in public controversy.
4
Evaluate the view that Judges have exercised greater independence in recent years. - YES
- Establishment of Judicial Appointments Commission in 2006 took power away from the Prime Minister and Lord Chancellor in judicial appointments.
- The Role of the Lord Chancellor has been substantially reduced. S/he was once a major threat to judicial independence , being both the head of the judiciary and a member of the cabinet. Since 2005 this role has been transferred to the Lord Chief Justice and the Lord Chancellor has to swear an oath to defend the independence of the judiciary.
- The Law Lords moved to their own Supreme Court in October 2009. This finally broke the dual role of the Law Lords as both members of Judiciary and Legislature.
- Evidence of greater judicial activism in recent years suggests a determination on the part of judges to develop their own ‘proper’ application of law. Therefore, increasingly common public clashes between ministers and judges provide evidence of the health of judicial independence.
5
valuate the view that Judges have exercised greater independence in recent years - NO
- Theresa May criticism of judges in 2013 (as Home Secretary) and telling them that Parliament would have to change the law seeing as they seemed to be wilfully misunderstanding the government’s intentions regarding not deporting criminals because of Section 8 of the HRA.
- Asylum Act 2002 and the interference of Home Secretary, David Blunkett where he criticised the judiciary calling them ‘dictators in wigs’ for stating that his laws were not consistent with HRA. Maxine Carr and the interference of David Blunkett where he stepped in to make sure she did not qualify for early release.
- Attourney-General’s (Lord Goldsmith’s) advice on Iraq War which was arguably not impartial owing to his membership of the Cabinet (as revealed by the Chilcott Inquiry)
- The PM appoints Judges to head up major inquiries. E.g. Tony Blair appointment a notoriously pro-establishment judge, Lord Hutton, to investigate events surrounding the death of David Kelly.
- The decision to be able to keep terrorist suspects under detention without trial is authorised by the Home Secretary and not a judge. This too reflects a loss of judicial independence.
6
Evaluate the view that Judicial independence is the cornerstone of the UK constitution - YES
- Freedom from Criticism. Convention dictates that MPs and Ministers do not criticise judges and the principle of sub judice during the case itself (which outlaws any public comment).
- Independent legal profession. Judges are trained independently of the state (regulated by the Law Society).
- Role of Lord Chancellor has been downgraded (in Constitutional Reform Act 2005). Lord Chief Justice (Lord Phillips) now heads the Judiciary.
- Security of Tenure makes Judiciary more independent - they cannot be removed from post easily.
- Appointment Process now through JAC who recommend appointments to the Lord Chancellor (he can only veto the first appointment).
- We now have an independent Supreme Court (as of October 2009 the Law Lords no longer sat in the House of Lords) so this part of the judiciary is physically separated from the legislature.
3
Evaluate the view that Judicial independence is the cornerstone of the UK constitution - NO
- The judiciary does still play a legislative role in the making of Common Law (this is law set by precedent by Judges). Therefore it is difficult to argue that the judiciary is completely independent.
- Politicians appoint judges to head up Judicial Inquiries which often examine the functioning of government! (e.g. Tony Blair appointed Lord Hutton to head up the inquiry into the death of scientist, David Kelly + Chilcott Inquiry). The Lord Chancellor also still formally appoints Judges.
The HRA has brought the Judiciary into conflict with the Government illustrating a lack of independence again. Especially in cases where judges use the HRA to overrule acts of parliament (e.g. deeming house arrest to be a deprivation of liberty and also effectively creating ‘new privacy laws’ with respect to super injunctions.
- There are several members of the Executive (the government) that play judicial roles.
The Attorney-General (Jeremy Wright) is the government’s legal adviser. He is supposed to provide independent legal advice but is also a member of the Cabinet (c.f. Iraq War advice in 2003).
The Home Secretary is responsible for law and order. This can lead them into judicial territory. For example, s/he has the power to detain suspected terrorists under house arrest for 28 days without trial.
The Justice Secretary is responsible for the smooth running of the court system. This can lead him into judicial territory. e.g. under the last Labour Govt when Jack Straw wavered about releasing details of Jon Venables’ trial.
4
Some good recent examples of politicians interfering in judicial matters:
- Theresa May 2013 criticising judges for not deporting more foreign criminals.
- Michael Howard as a Conservative Home Secretary criticised the sentences of the Bulger killers.
- David Blunkett criticised the potential early release of Maxine Carr.
- Lib Dem MP John Hemming outs Ryan Giggs in May 2011 in connection with the superinjunction, thereby flouting judicial independence.
4
Evaluate the view the extent to which Judges are always politically neutral and impartial - YES
There are a number of conventions in place which preserve neutrality:
- Political Restrictions. Judges are not supposed to engage in open political activity.
- Legal Training. The extensive process of legal training is designed to enable judges to focus entirely on legal considerations.
- Accountability. Senior judges must explain their rulings, highlighting, in the process, the points of law that have affected them.
- Not Public Figures. Judges have traditionally been discouraged from speaking out on political matters and from being involved in public controversy.
4
Evaluate the view the extent to which Judges are always politically neutral and impartial - NO
- Not representative of society as a whole. 70% of judges were privately educated and 78% went to Oxbridge. Also mention the ‘Griffith Thesis’ which argues that their background makes it impossible for the judiciary to be truly neutral.
- Growing support for human rights and civil liberties. As evidenced by the Law Lords ruling to extradite the Chilean dictator, General Pinochet.
- Recent Lord Chief Justices have at times launched outspoken attacks on government. Lord Phillips (the last LCJ) criticised the wider use of mandatory sentences in 2007.
- Alleged male bias of the Judiciary. With regard to the series of super injunctions in 2011 (Jeremy Clarkson, Ryan Giggs, Andrew Marr etc) an argument was put forward that male judges overly protective of male celebrities by awarding the super injunctions.
3
Evaluate the view that the UK Judiciary is able to fully protect rights in the UK. - YES
- The UK has developed its protection of Civil Liberties by extending ways to redress grievances. Alongside the ability to contact a MP/ go to Ombudsman citizens can go to the courts who will uphold the Human Rights Act 1998.
Use of Ultra Vires to criticise action of the government or public body
The Human Rights Act 1998 and an increased willingness of the Judiciary to protect civil liberties.
Declarations of Incompatibility against the executive
- Use of Judicial Inquiries to highlight public concerns
- Senior judges have become ‘Voices of concern’
This is where eminent judges (such as the Lord Chief Justice) use their elevated status within society to raise concern about a particular issue.
For example:
- Lord Woolf condemned David Blunkett (Labour Home Secretary) for prison overcrowding
- Lord Judge (2009) ‘The government is obsessed with passing too many laws, framed with too many words creating too many crimes’
- Judge Richard Bray condemned the government’s immigration laws
