Judiciary

Question 1

Role of the judiciary

Answer 1

Interpret law and decide what it means and how it applies to certain cases.
Uphold the rule of law
Uphold the will of the legislature
Secure the liberties of individuals (protect human rights)
Ensure the government complies with the constitution
Carry out judicial review
Sit in the Supreme Court

Question 2

Key principles of the judiciary

Answer 2

Sovereignty of parliament - source of al political authority
Rule of law - applies to all and entitled to a fair trial
Judicial precedent - when judges makes law other courts must abide by interpretation, only a higher court can overturn
Primacy of EU law - duty of Britain courts to enforce EU law and challenge the UK legislation where incompatible

Question 3

Common law and judicial review

Answer 3

Common law - this is the legal precedent that comes from rulings of senior judges. Common law is an important sources of constitution. For example Regina v Jogee 2016 ruling that changed precedent on the joint enterprise ruling. That changed common law.
Judicial review - process where judges review the actions of public officials and bodies to make sure they have acted within the law. This is not about the decision but the process undergone to come to that decision.

Question 4

CRA 2005

Answer 4

Before the 2005 CRA law lords sat in the HoL. The act introduced due to concerns of incomplete separation of powers: specially Lord chancellor. Also criticisms over opaque appointments process and confusion over the work of law lords.
Before CRA - Derry Irvine Lord chancellor in 1997. He held dinners for Blair’s election campaign and was Blair’s former pupil master and advisor of Labour Party during 1980s.
Charlie Falconer Lord chancellor on 2003 was Blair’s former flat mate and held various positions in cabinet and was made a life peers as Baron Falconer - he was Blair’s first peer recommendation.
Under the act Lord Chief Justice became head of judiciary, rather than Lord chancellor. Lord chancellor (David Gauke) has a different role. The judicial appointments commission set up to deal with judicial appointments. Law lords were removed from the HoL.
Under CRA Supreme Court took on most of those judicial roles performed by law lords. Acted as final court of appeals in England, Wales, Northern Ireland and hear appeals from civil cases in Scotland. Also clarify the meaning of the law by hearing cases where there in uncertainty.
Supreme Court started in 2009 with 12 members on the court and current head is Baroness Hale

Question 5

How were appointments made before CRA 2005

Answer 5

Appointments to all positions in senior judiciary traditionally made by the monarch on advice of the PM and Lord chancellor.
Lord chancellor consulted existing senior judges by a process called secret soundings.
The system lacked transparency and undermined the separation of powers and resulted in a senior judiciary drawn almost exclusively from a narrow social circle (public school, Oxbridge, male, beyond middle age). CRA aimed to address these problems and aimed to increase judicial independence

Question 6

How appointments are made today

Answer 6

Need to have been in a high judicial office for 2 years or qualifying practitioners for 15 years to be considered.
Appointments to the Supreme Court filled by an AD HOC committee (as opposed to the JAC which deals with all other senior judiciary appointments).
The 5 member committee must contain President of the Supreme Court, deputy president (Lord Mance), member of JAC, one member of judicial appointment board for Scotland and a member of Northern Ireland judicial appointment commission.
5 member commission considered nominees and made a selection and submits a report to Lord chancellor. They can reject selections, require the commission to reconsider or accept by notifying the PM. Then the PM most recommend candidate to the queen. Appointment is confirmed once the monarch has issued patent.

Question 7

UK Supreme Court composition

Answer 7

Founding justices of Supreme Court were those working law lords in 2009. Although these individuals remained members of the HoL, they were barred from sitting and voting in the chamber for as long as they remained justices of the Supreme Court.
Under CRA 2005 those appointed to the court after October 2009 are not automatically awarded peerages.
As of April 2018, 12 judges, 9 attended independent schools, 9 attended Oxbridge, 2 female and the average age was 69.

Question 8

Key principles of UK judiciary

Answer 8

Key principles of judiciary are rule of law, judicial independence and neutrality.
Rule of law is a key principle of the constitution. According to Dicey the rule of law had three elements.
No one can be punished without trial, no one is above the law and all subject to some justice and general principles of constitution result from judges decisions rather than parliamentary statute.

Question 9

Judicial independence and neutrality

Answer 9

Rule of law demands judges at all levels operate with high levels of independent and dispense justice with neutrality. Absence of independent threat of neutrality as impartiality of judges is compromised if subject to external control.
However judicial independence does not guarantee judicial neutrality as judges may allow their personal views to influence justice.
Judicial independence - principle that judiciary should be feee from political control. Such independence allows judges to do the right thing and apply justice properly without fear of consequences.
Judicial neutrality - judges operate impartially (without personal bias) in their administration of justice. This is an essential requirement of the rule of law

Question 10

Six pillars of judicial independence

Security of tenure and consolidated funds

Answer 10

Security of tenure - judges appointed for an open ended term, limited only be requirement that they must retire at 75. Means politicians cannot seek or bring influence to bear by threatening to sack or suspend them. Members of senior judiciary can only be removed as a result of impeachment proceeding requiring a vote in both Houses of Parliament.
Consolidated fund - judges salaries are classified as standing services and are therefore paid automatically from the consolidated fund. This means politicians were unable to manipulate judges salaries as a way of controlling them.

Question 11

Six pillars of judicial independence

Contempt of court and separation of powers

Answer 11

Contempt of court - under sub justice rules the media, ministers and other individuals are prevented from speaking out publicly during legal proceedings. This requirement designed to ensure that justice is administered fairly without undue pressure being brought to bear by politicians or general public.
Growing separation of powers - downgrading of Lord chancellor and creation of Supreme Court enhanced separation between senior judiciary and other branches of government. Prior to this most senior judges law lords sat in the HoL and Lord chancellor in all three branches of government.

Question 12

Six pillars of judicial independence

Appointments system and training of senior judges

Answer 12

Appointments system - CRA 2005 creates judicial appointments commission. Brought greater transparency to process of appointments and served to address concerns that system previously been open to political bias.
Training and experience of senior judges - most senior judges have served an apprenticeship as barristers and come to the bench having achieved a certain status in their profession. It is argued that individuals take pride in their legal standing and therefore unlikely to defer to politicians or public opinion where this would be seen to compromise their judicial integrity.

Question 13

Judicial neutrality

Answer 13

It is impossible to guarantee judicial neutrality: judges will inevitably bring some degree of personal bias to their work.
However the promise of a universal application of law under the doctrine of the rule of law requires that such bias is not allowed to colour judicial decisions.

Question 14

How judicial neutrality is achieved

Anonymity of senior judges, restrictions on political activity

Answer 14

Relative anonymity of senior judges - judges have traditionally operated away from the public eye. Until recently judges rarely spoke out publicly on issues or law or public policy and senior judges expected to avoid being drawn into open defence of their rulings or criticism of those in government.
Restrictions on political activity - judges not supposed to campaign on behalf of a political party or pressure groups. Although judges retain right to vote, their political views or outlook should not become a matter of public record

Question 15

How judicial neutrality is achieved

Legal justifications and high level training

Answer 15

Legal justifications of judgements - senior judges excepted to offer explanation of how decisions are rooted in law. Requirement that decisions be clearly rooted in law makes it less likely senior judges guided by personal bias. Supreme Court decisions are published on their website.
High level training - judges are highly trained and regulated by law society. Senior judges commonly served for years as barristers and their elevation to higher ranks of judiciary would not reflect a belief they are able to put personal bias aside. Security of tenure makes it difficult to remove judges whose neutrality is open but additional audience and training can be required and judges may be removed asset from serious cases while their performance is monitored

Question 16

Threats to neutrality

Answer 16

Main threat is narrow recruitment pool from which senior members of judiciary have been drawn out. Argued judges cannot be neutral when their own life experiences are different from most of those brought before them.
Judicial appointment committee hasn’t solved this problem. Only 4 of 161 senior judges are from ethnic minorities.
Also HRA 1998 said to be politicised the judiciary. However growing public profile and increased conflict between senior judges and politicians could be seen as senior judges appearing willing to take in political establishment in defence of civil liberties.

Question 17

Has the judiciary become too politicised

YES

Answer 17

HRA 1998 drawn senior judges into making decisions on merit of statute law as opposed to its application.
Factortame Case 1990 established precedence that UK courts can suspend acts of parliament where they contradict EU law.
Politicians broke conventions to not criticise rulings of senior judges - David Davis high court ruling November 2016 stating government could not trigger article 50.
Creation of the Supreme Court 2009 brought senior judges into the political arena.

Question 18

Has he judiciary become too politicised

NO

Answer 18

Appointments process more transparent and less open to political influence with creation of JAC and Supreme Court appointments process
Security of tenure and consolidated fund insulated judges from political pressure.
Uk judiciary has become more independent in the wake of CRA 2005 such as downgrading role of Lord chancellor
Conflict between judges and politicians is positive as it shows courts are willing to challenge the government when it appears to encroach on civil liberties

Question 19

Criticisms by politicians

Answer 19

2003 - David Blunkett condemned the release of 9 Afghan prisoners. Also called Supreme Court dictators in wigs.
2005 - Charles Clarke crocuses release of terror suspects from Belmarsh
2007 - John Reid attacked the decision not to deport the murderer of headmaster Philip Lawrence
2010 - Theresa May attacked the refusal not to deport two terrorists suspects to Pakistan.

Question 20

Judicial review

Answer 20

Uk Supreme Court cannot strike down laws but holds power of judicial review.
Court proceedings where judges reviews the lawfulness of a decision (action made by a public body/minister). Judicial review challenge the way a decision has been made. Public body can make the same decision as long as they do it in a lawful way.
Supreme Court and court of appeals have the power to set legal precedence establishing common law through the use of judicial review. They clarify meaning of law as opposed to applying the letter of the law. Judicial review has grown due to the European Union law and 1998 HRA

Question 21

European law and the Supreme Court

Answer 21

Under 1972 European communities act, UK incorporated treaty of Rome into UK law
Gave European laws precedence over conflicting UK statutes, whether in the past or present.
For many years UK government called to account a European court of justice. This changed with factortame Case 1990. UK courts able to suspend UK statutes that appear to be in violation of UK law. Power disappear when UK leaves the EU

Question 22

HRA and Supreme Court

Answer 22

Before 1998 cases brought under European convention on human rights hears at European court of human rights in Strasbourg.
HRA brought ECHR into UK law allowing citizens to pursue cases under ECHR through UK courts. Not EU law and therefore not superior to statute law. Judiciary only give declarations of incompatibly where statute law violates rights but parliament is not obliged to amend statute law.
HRA persuasive authority that has enhanced protection of individual rights in the UK and led to parliaments joint committee on human rights in order to ensure draft legislation is compatible. As a regular piece of statute law the HRA can be amended or repealed. Where statute law is unclear the HRA can be used to create common law.

Question 23

Cases of judicial review

Nicklinson and ministry of justice 2004

Answer 23

Details - Nicklinson had locked in syndrome along with two others and felt life was worthless and the Supreme Court had to decide if 1961 suicide act should be unlawful.
Reason for importance/links to EU law/ ECHR
Men claimed the act infringed their right to decide when to die - article 8 of ECHR.
7 ruled against the men and 2 ruled in favour.
Said article 8 of ECHR would not be used over suicide act and it was up to parliament to change the act

Question 24

Judicial review

Miller v Secretary of State for existing the EU 2017

Answer 24

Details - January 2017 Miller won her judicial review case on parliament having the final say on article 50
Reason for importance/links to EU law/ ECHR
Supreme Court upheld earlier court decisions and declared an act of parliament needed to trigger article 50

Question 25

Judicial review

Application of LB of Lewisham v Secretary of State for health

Answer 25

Details - Court of appeals ruled Jeremy Hunt did not have power to implement cuts at Lewisham hospital. Previously high court ruled Mr Hunt to have acted ultra vires.
Reason for importance / links to EU law /
ECHR
High court states Mr Hunts decision was unlawful as he lacked power and breached the national health services act 2006. Government then went to the court of appeal to get the decision overturned and lost again, also barred Mr Hunt from appealing the case to the Supreme Court

Question 26

Judicial review

United States of American v Nolan 2015

Answer 26

Details
Case resulted from claim against the US government under trade union and labour relations act 1992. Nolan employed at US army base at Hampshire argued there should have been more consultation before making workers redundant.
Reason for importance/ links to EU law/ ECHR
US government argued Secretary of State acted ultra vires under the European communities act 1972, as 1995 regulations under Nolan made her claim beyond basic rights under EU law. Supreme Court ruled in Nolan’s favour arguing Secretary of State has not exceeded his powers when issuing regulations in 1995

Question 27

The judiciary has impacted other branches of government

Answer 27

Diminishing role of Lord chancellor and removal of UKs most senior judges from HoL under CRA 2005 have enhanced judicial independence and would hold parliament and executive to account.
By allowing cases under ECHR to be heard in UK courts, HRA allowed UKs senior judges to directly ask questions on acts of parliament as well as actions of those in executive
Precedent set under 1990Factortame Case allows senior judges to suspend actions of parliament and the executive, where either branch breaches EU law
Extension of EU law in wake of Maastricht treaty 1992 brought senior judges into conflict with both executive and parliament across a wide range of policy areas than previously
Growth in judicial independence has had an impact. Those in executive and parliament now took to head of conflict in courts by ensuring all legislation complies with HRA and EU law

Question 28

The judiciary has not impacted other branches of government

Answer 28

Physical relocation of UKs top court to Middlesex Guidhall in 2009 did little to change legal constitutional relationship between judiciary, executive and parliament
Although HRA gives judges right to declare declarations of incompatibly parliament is under no obligation to fall in line with court proceedings
Senior judges ability to rule ministers acting ultra vire, those ministers can use executives control of parliament to pass retrospective legislation which legitimates actions
Although scale and scar of EU law has grown since Maastricht treaty, many areas of public policy remain in the hands of parliament, limited scope of judicial action
Any review status of HRA and complete Brexit reduces the ability of Supreme Court to have an impact on parliament or executive

Question 29

How rights are protected in the UK

Answer 29

UK never had a formal bill of rights. Constitutional and legal framework protecting rights have evolved over time.
Most of our rights were negative rights, which mean UK citizens were free to do anything not prohibited by law.
However the 1998 HRA changed this

Question 30

Threats to civil liberties

Answer 30

Anti terrorism crime and security act 2001 - allowed indefinite detention of foreign terrorists
Prevention of terrorism act 2005 - introduced control orders
Terrorism act 2006 make it illegal to glorify acts of terrorism. Also allowed detention of British terror suspects for up to 28 days.
Counter terrorism act 2008 extends right to take DNA evidence and monitor those suspected of involvement in terrorism. The government tried to extend detention to up to 42 days but was defeated

Question 31

Human rights and detention

Answer 31

2001 anti terrorism act allowed indefinite detention of foreign terrorist suspects. To pass the law the government derogated article 5 of ECHR on grounds of public emergency. In 2004 Law Lords ruled this was incompatible with ECHR.
2005 government introduced control orders under prevention of terrorism act 2005. Meant suspects were virtually placed under house arrest without trial. Subjects did not have to be told why they were subject to a control order. Consequently law lords ruled it was incompatible with ECHR.
Coalition announced plans in 2011. Terrorism prevention and investigation measures (TPIMs) were greeted with dismay by groups such as Liberty. With TPIMs, curfews up to 10 hours remain and restriction imposed on travel. Some access to internet and use of mobile phones was granted.

Question 32

Civil liberties and recent developments

Answer 32

Better protection of civil liberties occurred with protection of freedoms act 2012. Permanently reduced the pre-charge detention period to maximum of 14 days.
Stop and search powers without suspicion were scrapped.
Proposals for ID cards scrapped.
However the Snoopers Charter 2016 extended the states surveillance

Question 33

Redress of grievances

Answer 33

In order to protect citizens from unfair laws and actions on behalf of the authorities, there are certain avenues people can take to redress grievances. This means investigating and hopefully resolving citizens complaints about a public body

Question 34

Redress of grievances

Using HRA

Answer 34

This incorporates the ECHR into UK law and protects key rights and can be used by non British internationals to protect their rights
Positives - used by Abu Qatada he was in the UK for 11 years with his case which shows the courts are effective. Ensures everyone treated fairly. Rent Act 1978 removes by HRA. Use UK courts for HRA makes it cheaper
Negatives - method is expensive, cost Abu Qatada £1.7 million for all of his cases. Universal application of HRA can protect a small minority of criminals harbouring them from justice.

Question 35

Redress of grievances

Using judicial review

Answer 35

This seeks to review the process of decision making
Positives - more effective in recent years, judicial review increased from 4,200 in 2000 to 15,600 in 2013. Effective with closure of Lewisham hospital case as Jeremy Hunt acted ultra vire.
Negatives - can be expensive cost £140 plus cost of lawyers. Most cases of judicial review rule in favour of government or public bodies. Only 1/4 rule against the government and public bodies

Question 36

Redress of grievances

Using your MP

Answer 36

MPs should be a citizens powerful friend and act to protect and promise their interests in HoC.
Positives - MP have a weekly surgery citizens can take grievances, makes MPs easy to access. MPs ask questions on behalf of their constituents, Rachael Maskell questioner Theresa May over job losses in York with Nestle. MPs should protect and promote citizens interests in HoC. Passed PMBs, like Kevin Hollinrake with Claudia’s law in 2017.
Negatives - difficult to pass PMBs without government support

Question 37

Redress of grievances

Using an ombudsman

Answer 37

Job of ombudsmen to investigate complains against government bodies. They submit a result to HoC.
Positives - investigate complains against government bodies and after investigation a report is submitted to HoC select committee and published. Separate and independent from government. They can make witnesses attend hearings and inspect relevant files and papers.
Negatives - an MP has to recommend people to the Ombudsman. If maladminstration took place the ombudsman recommends an appropriate remedy but the government is not obliged to accept it

Question 38

Redress of grievances

Pressure groups and the media

Answer 38

Pressure groups gain media attention and should hold the government to account. Positive media coverage is beneficial as it draws public and media attention to the case.
Positives - pressure groups gain media attention and hold government to account. For example the Gurkha campaign. Positive media coverage draws public and media attention to the case
Negatives - despite public backing the 2003 million marches against Iraq failed. E-petitions only need to be debated. Parliament do not need to have a vote on them