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AS Politics > 2- Murphy- Judiciary > Flashcards

2- Murphy- Judiciary Flashcards

1
Q

Define Common Law.

A

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

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2
Q

Define mandatory sentences.

A

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

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3
Q

What do judges do?

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

Define Rule of Law.

A

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.
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5
Q

Define parliamentary privilege.

A

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.

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6
Q

Define due process.

A

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

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7
Q

Define judicial independence.

A

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

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8
Q

How is judicial independence maintained?

A
  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
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9
Q

Define judicial neutrality.

A

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

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10
Q

How is judicial neutrality maintained?

A
  1. Political restrictions
  2. Legal training
  3. Kilmuir rules- judges should not appear in media or criticise gov. policy
  4. Not public figures
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11
Q

Define civil liberties.

A

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.

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12
Q

Define judicial review.

A

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.

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13
Q

Define ultra vires.

A

When a government has acted beyond their powers.

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14
Q

Define a bill of rights.

A

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

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15
Q

What are the 2 types of a bill of rights?

A
  1. Entrenched Bill of Rights

2. Statutory Bill of Rights

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16
Q

Define an entrenched bill of rights.

A

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

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17
Q

Define a statutory bill of rights.

A

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)

18
Q

Arguments for a bill of rights.

A
  1. Accountable government.
  2. Liberty protected
  3. Educational benefits
  4. Consensus on rights.
19
Q

Arguments against a bill of rights.

A
  1. Rule by judges
  2. Politicisation
  3. A ‘rights culture’
  4. Artificial rights
20
Q

What are the arguments for judicial review?

A

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

21
Q

What are the arguments against judicial review?

A

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

22
Q

Define judiciary.

A

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

23
Q

What are the tree levels of courts in the UK.

A
  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.
24
Q

How do judges make law?

A
  1. Declaring Common Law
  2. Interpreting Statute Law
  3. Developing Case Law
25
Q

Describe judges ‘Declaring Common Law’

A

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.

26
Q

Describe judges ‘Interpreting Statute Law’

A

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

27
Q

Describe judges ‘Developing Case Law’

A

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.

28
Q

Why are judges/ the rulings they make politically important?

A
  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
29
Q

How does the judiciary keep a check on government power?

A
  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
30
Q

Why is judicial independence important?

A
  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’
31
Q

Why is judicial neutrality important?

A
  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.
32
Q

What is judicial review.

A

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
33
Q

How significant is judicial review?

A

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.

34
Q

Why is judicial review important?

A
  1. Helps to preserve rule of law
  2. Checks gov. power
  3. Makes public bodies accountable
  4. Enforces ECHR
35
Q

How do the courts uphold civil liberties?

A
  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.
36
Q

Define a Fast Track Remedial Order

A

??

37
Q

Define recusal.

A

??

38
Q

Define extradition.

A

??

39
Q

In which ways do judges uphold civil liberties?

A
  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
40
Q

In which ways do judges not uphold civil liberties?

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

AS Politics (8 decks)

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