Judges v Politicians Flashcards
what is the debate over judges and politicians?
the UK has what is often referred to as a ‘rights based culture’, meaning that rights are of central importance within our society
however, there is widespread debate over whether politicians or judges are better placed to protect and defend these rights that are so vital to us
arguments to suggest that judges are in a better position to defend rights
powers of judicial review
independence and neutrality
parliamentary sovereignty seems to threaten rather than protect rights
arguments to suggest that judges are not in a better position to defend rights, politicians are
judicial review places too much power in the hands of unelected judges
parliamentary sovereignty actually enables parliament to protect rights
judges are not entirely neutral and independent
conclusion
therefore, it can be argued that judges are better placed than politicians to protect and defend rights in the UK
arguments on the judiciary and parliament
see other card deck
same arguments for whether rights are protected in UK or not
how does judicial independence and neutrality mean that the judiciary is in the best position to defend rights?
judicial independence ensures that the judiciary is independent of the other two branches of the political system and can defend rights based only upon the law, without political pressure and outside influence
judges are also neutral and can therefore protect a person’s rights without discrimination or considerations of their beliefs, character or other traits, making them more effective at upholding individual rights
how does the independent and neutral judiciary compare to parliament?
in contrast, parliament is far less neutral, largely because is it usually dominated by the governing party, who will usually push their own agenda rather than prioritising rights
this domination also tends to leave very few effective checks on government actions that contradict human rights, aside from the judiciary of course
MPs may be also reluctant to champion the cause of human rights if it benefits an unpopular type of person such as terror suspects or criminals, whereas the judiciary will treat everyone equally under the law regardless of who they are
this suggests that judges are better placed than politicians to protect rights in the UK
how can it be argued that the judiciary is not entirely independent and neutral and therefore not in the best position to defend rights?
some political commentators argue that while independent, senior judges still work with parliament to advise on the legality of legislation, meaning that judges have played a role in the creation of legislation and are less likely to approach issues of human rights with true independence or absolutely neutrality precisely for this reason
judicial neutrality is threatened by the fact that judges are unrepresentative of the wider public and tend from a narrow social and gender background, making them less aware of the issues facing most people and perhaps being unable to truly empathise
how is parliament more representative of the people?
parliament is far more representative of the people and so is better able to reflect the values and needs of society, thus making it the best institution to establish and defend rights
conclusion about judicial neutrality and independence
in reality, judges have spent years undertaking training on how to remain neutral and independent and tend not to allow their own personal backgrounds shape their decisions
as a result, it can be argued that judges are better placed than politicians to protect and defend rights, despite criticisms that can be made of the judiciary
