Judicial System Flashcards
What are the three highest courts in the UK, from top to bottom
Supreme Court
Court of Appeal
High Court
Two European Courts
European Court of Justice
European Court of Human Rights
How do Judges make law? [3]
Declaring Common law
Interpreting Statute law
Developing case law
What is the effect of senior judges interpreting statute law
Interpretation binding on all lower courts
What cases have judicial importance? [5]
Enforce the ECHR
Interpret Human Rights legislation
Ensure sections of society are discriminated against
Prevent the government exceeding its power
Enforce the rule of law
How does Judicial Independence work [5]
Judges can’t be dismissed for rulings
Salaries of judges are guaranteed
When a case in underway, no one can discuss it
All judges appointed by independent JAC
Senior judges can’t engage in active politics
Why is Judicial Independence important when interpreting statute law?
So the government can’t manipulate the outcome
Why should the judiciary not be influenced by any body?
In case it is required to dispense justice involving that body
How does Judicial neutrality work? [3]
Judges mustn’t be politically active
Judges should show no favour to a section of society
Judges should make decisions based on law rather than personal opinion
Why is judicial neutrality important? [3]
Ensures judges treat all sections of society equally
Prevents political bias in rulings
Gives confidence to citizens that they’ll be treated fairly
What instigates judicial review?
A request by an individual to challenge a decision or policy adopted by a policy body
What rulings can the court come to during judicial review? [4]
Offend ECHR
Offends Common Law
Ultra Vires - body didn’t have power to make such a decision
Correct administration wasn’t followed
What was the Belmarsh case of 2004?
Court ruled suspected terrorists couldn’t be detained without trial due to the ECHR
What was the suspected terrorists ban assets case in 2010
Court ruled the government didn’t have the right to freeze suspected terrorists assets. Ultra Vires case
Why is judicial review important? [5]
Preserves rule of law Enforces ECHR Protects sections of society from discrimination Makes public bodies accountable Prevents government abusing their powers
How can the judiciary control government power by upholding civil liberties?
Ensures citizens rights aren’t abused by government
By upholding rule of law, how can the judiciary control government power?
Ensures all are treated equally by government
Strengths of judicial power over government [3]
HRA give judges power to prevent government from exercising excessive power that threaten people’s rights
Independence of judiciary has allowed it to be more active
Judges retain powers over sentencing criminals
Weaknesses of judicial control over government [3]
Absence of codified constitution makes it hard to judge when the government has used excessive power
Government can claim Judges have no control over the, due to being unelected and unaccountable
Parliamentary sovereignty means a government can grant powers to itself that are beyond control of the judiciary
Judicial power in practise [2]
Child poverty action v Department for work and pensions
- ultra vires case made an important ruling that the department didn’t have the legal power to force people to return overpayments of welfare benefits when the department is at fault
HM Treasury v Mohammed Ahmed
- court ruled that the government didn’t have the power to freeze the financial assets of suspected terrorists
What are civil liberties?
The freedoms and rights that all citizens have which are guaranteed by law. Most are today contained in the ECHR, brought into British law by the HRA of 1998
What did the Human Rights Act state? [5]
All government bodies must abide by its terms
The only body not bound by the convention is Parliament, so parliamentary sovereignty is maintained
If legislation contradicts the HRA, a declaration of incompatibility should by made by the relevant minister
After appealing to the Supreme Court, it can go further to the ECHR
Judgements of the European court are binding in most states, but not the UK. Normally still accepted
Examples of rights noted in the ECHR [5]
Right to life Right to privacy and family life Right to freedom of expression Right to be free from discrimination Right to a fair trial
ECHR case 2006
Afghan Hijackers
- court ruled that afghan hijackers that landed in to the Uk could claim asylum on the grounds that their lives would be in danger if they were deported
How do courts uphold civil liberties? [5]
Refer to the ECHR Declare that common law has been breached Refer to a parliamentary statute Refer to similar EU legislation Carry out a judicial review upon request
How well can courts uphold civil liberties? [4/3]
Refer to codified set of rights in ECHR
Lots of legislation passed since 1960s on asserting civil liberties, particularly with preventing discrimination
Judiciary become more active as it’s become independent
Growth of judicial review
Courts can’t be proactive, must wait for a request
ECHR not binding on parliament so judges are powerless
Judges can’t prevent Parliament passing legislation to prevent them from asserting rights again in the future
What is the European Court of Human Rights?
Court that sits in Strasbourg and hears appeals from citizens in Europe. Decisions based on the ECHR. Court not part of the EU
What is the European Court of Justice?
Highest court of appeal in the EU that sits in Luxembourg
Roles of the ECJ [5]
Settles legal disputes between EU member states
Settles disputes between the European Commission and the member state
Interprets the meaning of EU law and how it applies
Hears appeals from individuals who feel their economic or social rights have been violated in their country
ECJ rulings are binding on all member states including the UK
Example of an ECHR case
2008 DNA Retention case
- court ruled that it was a violation of right to privacy to retain DNA profiles of innocent people. Government had to delete many DNA profiles
2 ECJ cases
1991 Factortame Case
- court ruled that UK law couldn’t conflict with EU law. Was based on fishing, passed much sovereignty to the EU
2009 Retirement Age
- court ruled in UKs favour to introduce a compulsory retirement age of 65
Key points of the Constitutional Reform Act of 2005 [5]
Lord Chancellor, head of the legal system, lost most of his roles
Lord Chief Justice made head of the legal system
New Secretary of State for Justice introduced. Still forbidden rom interfering with court decisions
Supreme Court set up to replace Judicial Committee in HoL
Appointments to Judiciary done by JAC. Free from political independence, though PM has veto for controversial candidates
Main effects of constitutional judicial reform [4]
Judiciary now more independent
Independence allows judges to be more confident in excercising powers
Increased judicial activism and willingness to challenge government authority over civil liberties
Judiciary increasing brought into conflict with government ministers
2 examples of judiciary-government conflict
Judges assert their right to make decisions of sentencing while governments believe they should as they are elected and accountable
Judges are active in protecting civil liberties and this sometimes conflicts with the governments need to maintain national security
What is statute law?
Laws passed by parliament where they aren’t clear
What is common law?
Law unwritten that is commonly believed and enforced. Court rulings are binding on all lower courts
What’s case law?
An interpretation of a law in certain situations. High decisions are binding on all lower courts
What decision did the court reach on the Mental Health Act 2002
UK law that persons detained for mental health reasons had to prove their fitness offended the ECHR. Instead, authorities have to prove that they aren’t fit
Give an example of an ultra vires case in 2016
Gina Millar challenged the idea that the government could withdraw from the EU without parliamentary approval - won
ECHR case 2011
Insurance Discrimination case
- ruled that insurance companies couldn’t discriminate against men by charging them higher insurance premiums than women
What was the Abu Qatada case?
ECHR blocked deportation of the Jordan cleric due to fears that evidence obtained under torture would be used against him at home.
May made a deal with Jordan that gave him right to a fair trial, that led to his deportation in July 2013
