judiciary Flashcards
SC- criticisms
.unrepresentative of UK> affect way they performed their functions + the decisions made
. “conservative” with a small “c” (traditional, small/gradual change) and with a big “C” (align themselves with Conservative party)
. historically seen as sexist, racist + out of touch with modern attitude (illiberal + failed to defend civil liberties)
. now part of a “Pre-European Establishment”- overly liberal + preoccupied with rights of minorities at expense of population as a whole
SC- criticisms from right
. mainly criticised from right
. believe it is job of par to get balance between security + freedom, not judges
. gone too far in defence of minority rights at expense of majority- eg. suspected terrorist> breach HR> stopping attempts by gov to tackle rising crime + terrorism
. HRA made matters far worse- gave judges right to overrule par> judges can issue a “declaration of incompatibility” =gov/par going against HRA
-doesn’t force change but formally announcing so should respond
. increased danger of their politicisation
criticism of Rwanda- “Judges place too much emphasis on rights of individual + minority groups”
. focused on immigrants’ rights
. “Rwanda is not a safe third country”
. breached HRA + international + domestic law
criticism of Rwanda- too tied up with their “liberal” agenda
. SC opposing Conservative policy
. right-wing policy- British values
. liberal idea to support immigrants- more tolerant
criticism of Rwanda- “Failed to take into account interests of wider society and their needs for security”
. UK may overall want this- representative of UK- elected> 48% agreed with Rwanda policy, 35% didn’t
. illegally breaching borders> threat to security- greater strain on security
. illegal immigration- Stop The Boats- manifesto
criticism of Rwanda- “Have handicapped the work of the gov, the police + other bodies- tough stance on immigration”
. every time gov amend the policy, it is blocked
- delaying further
- invested time + money on policy
. stopping Rwanda, not other third countries
criticism of Rwanda- “Become too powerful, similar to the US”
. too independent- Constitutional Reform Act 2005
. will not be removed if oppose gov
. unelected
ultra vires
. going beyond one’s power
par sov
. parliament’s power as supreme law making body to create, reverse, or amend legislation
judicial independence
. the separation of the judicial body
. Constitutional Reform Act 2005
. judges can’t be removed if oppose gov
- gov doesn’t appoint
judicial neutrality
. the judiciary is free from political bias
judicial review
. a court proceeding where the lawfulness of a public body (can be gov) is challenged
European Court of Human Rights
. an international court in Strasburg, which upholds human rights
Human Rights Act 1998
. the piece of legislation which protects human rights and means people won’t have to travel to Strasburg to challenge breach of human rights through court proceedings
judicial precedent
. judges look at previous cases in common law
rule of law
. no one’s above the law
. law is applied equally
2017 Gina Miller- triggering Article 50
. majority voted leave EU> gov triggered Article 50 without consulting par
. SC January 2017 ruling on Brexit- whether gov needed authority of par to trigger process of leaving EU, following referendum
. Miller challenged UK gov> SC ruled in her favour- she said par voted us into EU so had right to be consulted
. EU membership had introduced statutory rights for UK citizens, which only par could remove> need parliamentary approval
2019 Gina Miller- prorogation of Parliament
. Johnson shut down par> Miller took PM/gov to court
. Johnson’s justification- longest parliamentary session in decades, discussing Brexit deal
. SC determined decision to shut down par was ‘unlawful, void and of no effect’
>Miller won case
. found the power to prorogue is limited by constitutional principles
. upholds par sov
. no consequences for PM
judiciary defence- upholding key principles
. judges perform essential role in political system, upholding key values
. hold gov to account, by defeating gov policy + action in courts
. useful + necessary as par is limited in its ability to hold the gov to account
- weak opposition, party whips, Salisbury convention, fusion of powers, majority of seats, PM patronage, weak PMQs, ineffective select committees
. without them, Britain would heading for an elective dictatorship
judiciary defence- upholding rule of law
. judges performing their constitutional role + exercising powers given to them by par + the constitution
-2005 CRA> SC> upholds JI + JN
. ensures laws are observed + followed correctly by all- including the gov
. danger of arbitrary gov with those in power able to do anything they like (elective dictatorship)
. politicians all support rule of law until they lose in court- 2017 + 2019 rulings
judiciary defence- protecting civil liberties
. courts are delivering what par (+ people) want> led to this legislation in the first place
. signing ECHR + incorporating it into UK law through HRA was also a decision made by elected politicians accountable to an elected par
. has merely enhanced the powers of the judiciary according to the will of par
. judges protect rights of individuals, minority groups, organisations + gov
. par for generations has created law to protect those rights -eg. Race Relations, Equal Pay and the Equality Act 2010, preventing discrimination
. common law has also emerged to keep people free + extend their rights overtime
judges are not too powerful- declaration of incompatibility
. rule whether govs or gov bodies have breached the HRA- eg. rulings that overseas nationals convicted of criminal offences should be allowed to stay in the UK, as they have had the right to a family life
. if they believe policy is not in accordance withHRA, judges issue a ‘Declaration of Incompatibility’
. 2018- SC ruled NI’s abortion law was incompatible in cases of rape, incest, or foetal abnormality (although this was dismissed so not a formal declaration)
declaration of incompatibility- negative
. does not force gov to act
. suggestion> gov can ignore
. very different to powers held by US SC
. 2022- US SC (Republican majority) ruled that a right to abortion was not a constitutional right> abortion laws could be decided (banned) on an individual state basis
judges are not too powerful- ECHR can be ignored
. ECHR can be ignored by national govs
. most famous case is Hirst vs UK 2005- court ruled that a blanket ban on British prisoners’ right to vote breached ECHR
. 2018- only prisoners on remand + those on a tag serving sentence in the community were allowed to vote in UK elections
>decades since the case was first brought about, we still wait for courts ruling to be enforced by gov
judges are not too powerful- Gender Recognition Bill Section 35
. bill passed by Scottish par
-amend Gender Recognition Act 2004
. make it simpler for people to change their legal gender
. ‘section 35 order’ prevented bill from proceeding to royal assent
. section 35 of Scotland Act 1998 allows UK gov to challenge Scottish legislation made within devolved competence
. section 35 protects rights- ensures compatible with international obligations, national security, defence interests or where legislation would have an “adverse effect” on reserved (not devolved) matters
. EA 2010- risks affecting single-sex schools + would exacerbate existing issues with sex-segregated services
. court held gov acted lawfully
judges are not too powerful- courts will often side with gov
. lots of occasions when judges uphold gov policy
. support controversial legislation
. don’t act independent from executive
. don’t put too much emphasis on rights of individuals + minority groups
judges are not too powerful- ‘bias’ + ‘soft’ rulings overstate
. figures confirm that average sentences are increasing
. judges are tough on serious criminal offences
. judges unfairly criticised for their sentencing policy
. not undermining govs attempts to tackle crime by being too liberal
judges are not too powerful- Wayne Couzens whole life sentence 2021
. judge said seriousness of case was so “exceptionally high” that it warranted a whole life order
“All of these situations attack different aspects of the fundamental underpinnings of our democratic way of life.”
. PM Johnson said he was “sickened” by details that had emerged during sentencing
judges are not too powerful- cake row
. Christian owners of a NI bakery won appeal in so called “gay cake” discriminatory case
. SC ruled bakery’s refusal to make cake with a slogan supporting same-sex marriage was not discriminatory
. “They would have refused to make such a cake for any customer, irrespective of their sexual orientation”-Lady Hale (President of SC)
judges are not too powerful- diplomatic immunity + slavery case 2022
. SC ruled that a Saudi Diplomat was not excused from his crimes of modern slavery
. usually diplomats are immune from criminal + civil charges
. ruled it as a “commercial activity for profit”
