Exam Questions May 2022: Role of the Judiciary and its Influence Flashcards
Give three principles of the UK Supreme Court.
1) Rule of Law - A.V. Dicey - no punishment without law - no one is above the law - common law is desirable - not necessarily the case in practice - e.g. terrorist suspects have been detained without conviction since 2001 - under control orders
2) Judicial independence - should be free from political interference - e.g. maintained by JAC - ensure appointments are free from interference - though the Lord Chancellor plays a role - challenging separation of powers.
3) Judicial impartiality - decisions must be made without personal bias - Bow Street Mags v. Pinochet - Lord Hoffman failed to disclose his allegiances with Amnesty International - decisions are made fairly and objectively - equality under the law.
Give three ways the judiciary has become more political.
1) HRA 1998 drafts judges to make declarations of compatibility for all statutes passed by Parliament - e.g. s.29 Crime (Sentences) Act 1997 was found to be incompatible with Article 6 ECHR.
2) R (Factortame) v. Transport Secretary (1990) - UK courts were able to suspend Acts where they were thought to contradict EU law - meaning judges have a final say on statutes - leading many to claim they are ‘politicians in wigs’.
3) Increased media profile - ‘demystification’ of the court - e.g. Daily Mail was highly critical of the three judges that claimed the government needed to gain the consent of Parliament to invoke article 50 - decisions that challenge the gov. may draw attention to their mendacious practices.
Give three ways the judiciary can influence the government.
1) Judicial review - challenge the legality of gov’s actions - e.g. R (Miller) v. The Prime Minister - judicial review drags the court into the middle of political discourse - here, constitutional matters of politics.
2) Declaration of compatibility - HRA 1998 requires justices to state whether an Act is in line with the ECHR - e.g. R (Anderson) v. Home Secretary - s.29 Crime (Sentences) Act 1997 incompatible with Art. 6 - means that justices act like ‘politicians in wigs’.
3) Creation of separate SC in 2009 - led to demystification of the court by the media - e.g. Daily Mail - critical of three judges who ruled that the gov. required the consent of Parliament to invoke Art. 50 - may bring to the attention of the public the government’s mendacious practices.
Give three ways the judiciary is too powerful.
1) Power given by HRA allows judges to make declarations of compatibility - s.29 Crime (Sentences) Act 1997 declared incompatible in R (Anderson) v. Home Secretary (2002) - judges act as politicians in robes - challenging separation of powers.
2) Decisions often clash with government policy thus the political will of the electorate - e.g. Al Rawi v. Security Service (2011) - gov. attempted to withhold info on terrorist trials while still convicting them - SC ruled against the gov’s practice - judges are able to alter policy without electoral mandate.
3) Brexit - withdrawal from the Treaty of Rome (1957) - remove the SC’s subordinancy to the ECJ - increasing the status of the SC as the highest court - Vernon Bogdanor claimed Brexit would ‘increase the danger of a clash between judges and Parliament’.
Give three ways the UK judiciary is not too powerful.
1) Government isn’t obliged to follow a declaration made by the court - R (Wright) v. Health Secretary - scheme under the Care Standards Act 2000 was incompatible with Art. 8 - no response from government - Parliamentary sovereignty in an uncodified constitution ensures this.
2) Judges are experienced lawyers trained to examine cases with impartiality - appointed by an independent body - JAC (2006) - though the commission is formed of senior judges - may lead to bias e.g. 8/12 Oxbridge and 3 women.
3) Judges only interpret laws - voluntarily singed up to the ECHR and to pass the HRA - Parliamentary sovereignty - may easily opt to reverse both decisions - with Brexit - withdrawal from the Treaty of Rome - SC judges will no longer be tasked with enforcing EU law over UK law.
Give three ways the judiciary could be said to have become more political.
Agree:
1) Suspend legislation that contradicts EU law - comes from R (Factortame) v. Transport Secretary (1990) - undermines the principle of Parliamentary sovereignty and the primacy of statute law over common law.
2) Required to make declarations of compatibility under the HRA 1998 - e.g. R (Anderson) v. Home Secretary - s.29 Crime (sentences) Act 1997 was considered incompatible - may coerce parliament to change the law - s.303 CJA 2003.
3) Conventions may be broken by politicians who speak out regarding a ruling - e.g. David Davis after R (Miller) v. Secretary of State for Leaving the EU agreed with the Court - UK uncodified constitution may be inadequate for guaranteeing judicial independence.
Give three ways the judiciary has not become more political.
1) Separate SC under Constitutional Reform Act 2003 - removal of Law Lords from HoL - however it has increased their media profile - Daily Mail was highly critical of the 3 SC judges who ruled that gov. required consent of Parliament’s approval to invoke Art. 50.
2) Parliament does not have to respond to a declaration made - e.g. R (Wright) v. Health Secretary - scheme under the Care Standards Act 2000 was considered a violation of Art 6 - no change - maintains sovereignty of Parliament.
3) Appointments are made by an independent body - JAC created the 15 independent commissioners to appoint justices - however the Lord Chancellor plays a role in electing judges - though s.3 CRA 2005.
Give three ways the judiciary could be said to have had an increased influence on the government in recent years.
1) HRA 1998 requires judges to make a declaration of compatibility to all statutes passed by Parliament - e.g. R (Anderson) v. Home Secretary 2002 - automatically dragged into the middle of the legislative process.
2) Creation of separate SC has made judges more prolific - e.g. Daily Mail was highly critical of the three SC judges who rules that the gov. required the consent of Parliament to invoke Article 50 - ‘demystification’ of the judiciary - decisions that challenge the government draw media attention to the mendacious practices of gov.
3) Previous precedent has given more power to the SC - e.g. R (Factortame) v. Transport Secretary - senior judges are able to suspend laws that contradict EU law - challenges parliamentary sovereignty.
Give three ways the judiciary have not had an increased influence on government in recent years.
1) Parliament does not have to act upon a declaration of incompatibility - e.g. R (Wright) v. Health Secretary - Care Standards Act 2000 violated Art 6 - led to no change - maintains primacy of statute law over common law.
2) Senior judges have the ability to rule a minister ‘ultra vires’ - same ministers are able to legislate to allow their actions - e.g. Statutory Instruments Act 1946 allows ministers to bypass the legislative system to pass laws - may be stopped though the last attempt was 1979.
3) Brexit - European Union Withdrawal Act 2020 - and withdrawal from the Treaty of Rome sees a reduction in the legislative ability of the SC - SC is no longer able to enforce EU over UK law - reinstating Parliamentary sovereignty - removing a large role of the SC.
