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28 Cards in this Set
- Front
- Back
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High Court Judges |
Senior Judges - Hear appeals from county courts - Hear cases involving matters and disputes over large sums of money - Hear cases where citizens or organisations have a dispute with some part or agency of government, known as 'judicial review' |
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Appeal Court Judges |
Very senior judges - Hearing appeals from criminal courts and the High Court - Dealing with disputes from lower courts over the accurate meaning of the law - Dealing with appeals involving human rights |
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Supreme Court Judges |
The most senior judges (12 in number) - Hearing appeals from the appeal courts in England and Wales - Hearing appeals from the Scottish and Northern Ireland Courts - Settling major disputes over human rights and judicial reviews - Dealing with major problems over determining the accurate meaning of law - Settling disputes over conflicts between British and EU law |
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The Political Role of the Judiciary |
Dispensing justice; - Implies all citizens should be treated equally under the law and the law be applied to them in a fair way - Trials and hearings should be conducted in such a way as to ensure that all parties gain a fair hearing and that the law is applied in the spirit intended Interpretation; - In cases where the disputants in a civil case come into conflict over what the law is supposed to mean, in such cases it is for judges to interpret the meaning of a law - In cases concerning the powers of government or it's agencies, and the rights of citizens this may be of great public significance Creating case law; - It is for judges to decide how the law should apply in specific circumstances - Once this is decided it is expected that any similar case be dealt with in the same way Declaring Common Law; - Common laws are rules and behaviours developed solely by tradition - When there is no relevant statute law and no clear common law a judge must take evidence and decide what the common law is Judicial Review; - Courts review decisions made by the state or any public body in relation to its citizens to see whether citizens have been treated unfairly, whether their rights have been abuse, or whether a public body has exceeded its legal powers (acted in ultra vires) Public Inquiries; - Judges are often called upon to conduct public inquiries into matter of widespread public concern - Judges are used to handling such issues and are independent of government so an inquiry led by a judge can be seen to be politically neutral - The Levenson Inquiry, 2011-12 into the conduct of the press and its relations with the police and government External Jurisdiction - The courts have to settle any disputes concerning the jurisdiction of devolved bodies and the European Union - As the Devolution Acts established that devolution could not possibly deal with every single eventuality it is the role of the courts to decide whether London or one of the devolved administrations has power in particular cases - If there is a dispute over whether a matter falls under the jurisdiction of the British government or the European Court of Justice, the case will be referred to one of Britain's appeal courts and if there is further appeal, or more consideration needs to be given to the case, it will pass to the European Court of Justice for a final decision |
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The Legal and Constitutional Environment of the Judiciary |
The sovereignty of parliament; - Parliament cannot be overruled by the judiciary - Judges cannot defy the legislative will of parliament no matter what - They can give critical opinion and suggest a change in the law The rule of law; - The judiciary must apply the principle that all citizens are considered to be equal under the law and are entitled to a fair trial - If they do not provide this they leave themselves open to appeal at a higher court Judicial precedent; - When a judge makes an interpretation of law, creates a new case law, or declares common law, all courts in the future must abide by that interpretation - Only a higher court is able to overturn an interpretation by a lower court - Most disputed interpretations will end up in the Supreme Court for a final decision - If an interpretation causes a problem for government minister are at liberty to ask parliament to clarify the law by passing a new one or amending existing legislation The primacy of EU law; - It is the duty of the British courts to enforce EU law where jurisdiction has been transferred to the European Union - When there are problems of interpretation of EU law British courts will pass a case up to the European Court of Justice |
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Why the Judiciary has become More Politically Important |
The role of the judiciary has grown, there are many reasons for this - After the Maastricht Treaty of 1992 a good deal of power was transferred to the European Union. In particular related to the social chapter, which transferred a good deal of control over employment and other social rights to the EU - The Human Rights Act has meant that citizens can assert their rights more forcefully - The 2005 Constitutional Reform Act made the judiciary more independent than ever before - Senior judges are now appointed independently of government many of which now believe they have a very politically important role. Several of these judges are also willing to use the media to express their views |
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Why is Judicial Power Controversial? |
There are a number of reasons why the growing power of senior judges has been controversial - Some argue they are beginning to challenge parliamentary sovereignty - Judges are not elected and not accountable which means, some say, they should not be allowed to make decisions with political consequences - Many ministers have asserted that judges' decisions are threatening government policies in such areas as law and order, combating terrorism, controlling immigration and asylum seeking, and policy on welfare benefits - Some judicial review decisions have meant that important public sector projects have been set back, notably a third runway at Heathrow |
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Factortame 1991 |
The High Court ruled that the UK Merchant Fishing Act was in conflict with European Union Fisheries directives. The Uk Law was set aside, establishing the principle that EU law is superior to UK law |
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Michael Douglas v Hello Magazine 2001 |
The European Court of Human Rights ruled that Michael Douglas and Catherine Zeta Jones had a right not to allow unauthorised photos of their celebrity wedding to be published. This established a right to privacy, under the Human Rights Act, for such celebrities |
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Mental Health Act Case 2002 |
The UK Mental Health Act required that a person detained with a mental illness had to prove their own fitness to be released. The Court ruled this contradicted the Human Right Act's individual right to freedom. Instead such detainees have a right to freedom unless it can be proved to be against the public interest |
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Belmarsh case 2004 |
The House of Lords ruled that detainees held against their will under the anti-terrorism legislation contradicted the Human Rights Act on the grounds that citizens have a right not to be detained without trial. This forced the government to amend the anti-terrorism legislation to ensure safeguarded for suspected terrorists |
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Office of Fair Trading v Abbey National [now Santander] and others 2009 |
The Supreme Court ruled that the Office of Fair Trading had no power to investigate the banks' system of charging customers for overdrafts. This limited the regulatory power of the government over the banks |
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Suspected Terrorist Bank Assets 2010 |
The Supreme Court ruled that the government did not have the legal power to freeze the assets of suspected terrorists. This forced the government to pass special legislation to give it such power |
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Radmarcher v Grantino 2010 |
The Supreme Court ruled that pre-nuptial agreements (agreements between marrying couples on how property will be distributed if they subsequently split up) can be enforced in UK law |
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The Independence of the Judiciary |
Reasons why the judiciary should be independent - Without any effective check government could exceed its powers without the legal justification to do so, tyranny may result - It may suit government to discriminate against individuals or groups in society for its own benefit. An independent judiciary can prevent such discrimination. The citizens in a democracy must feel that their rights will be effectively protected and that legal cases they may become involved in will be dealt with on the basis of justice and the rule of law - Independence also implies that judges are selected on a neutral basis to prevent collusion between the judiciary and the government |
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How is Independence of the Judiciary maintained? |
Security of tenure; - Judges cannot be removed from office on the grounds of the kind of decisions they make - The only reason a judge can be removed is if they can be shown to be corrupt as a result of personal conduct incompatible with being a judge - Judges salaries cannot be reduced if they make contentious decisions Contempt (the sub judice rule); - It is in contempt of court for any servant of the government to attempt to interfere with the result of a court case or even to comment on such a case in public or in parliament - This prevents political pressure being placed upon judges Independent appointments; - Since 2005 most judges are now appointed by a Judicial Appointments Commission which is politically independent - Judges in the Supreme Court and the Appeal Court (civil division) are appointed by a special committee comprising of senior members of those courts and representatives from the Judicial Appointments Commissions in England, Scotland, and Northern Ireland Training and Experience; - All senior judges must have enjoyed length careers as lawyers which means they are accustomed to the principle that cases must be judged on the strict basis of law and not on personal opinions |
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How Independence may be Threatened |
Threats to the independence exist despite the British judiciary having a reputation for political independence - The fact that government retains control of the legal system through the Justice Ministry. this does not constitute direct control, but suggests a good deal of interference - In recent years there has been an increasing tendency for politicians to enter into open political dialogue with judges over such issues as sentencing policy and the protection of rights. This may result in indirect pressure being placed in the judiciary - The prime minister (on the advice of the Lord Chancellor) has a final veto over such appointments. This is a theoretical problem which may not be grounded in reality |
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The Neutrality of the Judiciary |
The case for lack of neutrality; - Judges come from a narrow social and professional background The case for neutrality - An increasingly large number of judgements in recent years have fallen in favour of individuals and minorities against the government - Conservative Home Secretary Michael Howard last a string of judicial review cases brought against him by prisoners in custody who claimed his prison regime abused their human rights - The Human Rights Act has constantly been used against the government so much so the conservatives want to repeal it - There has been a succession of independent minded 'Liberal' judges appointed to senior positions Lord Woolf, Hoffman, and Bingham are good recent examples of judges who have been quick to criticise teh government for threatening civil liberties |
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Main Areas Covered by the ECHR and thus the HRA |
1. The protection of property 2. The right to life 3. Prohibition of torture 4. Prohibition of slavery and forced labour 5. Right to liberty and security 6. Right to a fair trial 7. No punishment without law 8. Right to respect for private and family life 9. Freedom of thought, conscience, and religion 10. Freedom of expression 11. Freedom of assembly and association 12. Right to marry 13. Prohibition of discrimination 14. Restrictions on political activity of aliens 15. Prohibition of abuse of rights 16. Limitations of restriction of rights |
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Arguments for the British Bill of Rights |
The ECHR is established by the European Council and is therefore out of the hands of the UK parliament; The ECHR puts too much power in the hands of both UK and European judges. They are not elected and not accountable; The over vigorous application of the ECHR by the courts has had the effect of thwarting government policy in such areas as law and order and anti-terrorism measures; What suits other European countries in terms of rights, may not be applicable in the UK - for example in such fields as privacy law, family law, immigration and asylum seeking |
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The Government and the Judiciary |
1. As ministers, especially Home Secretaries, have sought to gain more control over sentencing in serious crime cases, they have encountered opposition from judges who believe that the issue of sentencing in criminal cases should remain in their hands. - Specifically, judges have resisted the introduction of legally binding minimum sentences for some categories of crime - More generally, judges have also expressed the strong view that they would prefer to reserve longer prison sentences for the most serious crimes - In 2010 the Sentencing Council came into existence. Its role is to set sentencing guidelines that judges should follow 2. Many senior members of the judiciary, including Lords Woolf and Phillips, have publicly criticised the erosion of civil liberties that would occur if the government introduced even tougher anti-terrorism measures. Judges also criticised the Criminal Justice Bill of 2003 which proposed that accused persons could be tried for the same crime twice in some circumstances on the grounds that many types of cases would be heard without a jury and that accused persons' past convictions could be used against them as evidence 3. The general tendency of judges to become publicly involved in political controversies of the kind described above has angered government ministers, who insist that the judiciary should be seen to be politically neutral |
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The Strengths of the Judiciary in Protecting Rights |
The Human Rights Act has given the judiciary a codified set of rights upon which to judge whether executive and legislative action threatens civil liberties. As it is binding on all but parliament, the act is a key weapon available to judges; The judiciary can justifiably claim to be independent; It has become considerably easier for citizens to seek judicial review so that judges now hear many more cases of political importance; The new supreme court is showing signs of being more independent than the House of Lords used to be |
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The Weaknesses of the Judiciary in Protecting Rights |
The sovereignty of parliament means that judges are forced to accept legislation made at Westminster; The Human Rights Act is not binding on parliament; Judges do not have the power to undertake 'pre-legislative review', that is, they cannot take positive action to influence legislation before it is presented to parliament; Judges are neither elected nor accountable and so lack democratic legitimacy; Where judges are believed to be obstructing government, the law can be amended to force them to comply with government wishes |
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The Constitutional Reform Act of 2005 |
1. The Lord Chancellor no longer presides over the House of Lords and is no longer head of the courts system. Instead the Lord Chief Justice - a non-political post - became head of the judicial system. The post Secretary of State for Constitutional Affairs was created in the cabinet and its holder is to advise the government on constitutional issues 2. A new Judicial Appointments Commission was set up to propose candidates for promotion to senior judicial positions. The Commission ensures that there is no political influence over the decision. Though senior politicians do have some day in the final appointment, it is expected that there be no more political interference 3. The 12 law lords who sat in the House of Lords and formed the highest court of appeal in the UK were removed to a new Supreme Court in 2009. The new powers of the current justices remain the same but it was an important step in establishing independence |
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Gillan Quinton, January 2010 |
The UK breached privacy rights through stopping and searching people without good reason when seeking out terrorists which led to new guidelines being needed on police powers of stop and search |
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Khan, January 2010 |
Khan was an immigrant who had served a prison sentence but had settled down with a family and had not re-offended. He successfully claimed violation of his right to family life by threat of deportation. The case made it more difficult to deport immigrants, even if they had committed offences |
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Alder, November 2010 |
Alder had died in police custody. His family successfully claimed their rights had been violated by failure to investigate the matter properly. The UK subsequently paid large compensation to the family and the police were forced to ensure any such deaths are fully investigated |
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Abu Qatada, January 2012 |
The state of Jordon wished to extradite Qatada for him to stand trial on terrorism. Court ruled he should not be extradited as some evidence against him had been obtained by torture. Following this the UK government, frustrated as they wished to see Qatada tried as they saw him as a dangerous Islamic extremist, attempted to further get round the ruling |
