judiciary

Question 1

SC- criticisms

Answer 1

.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

Question 2

SC- criticisms from right

Answer 2

. 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

Question 3

criticism of Rwanda- “Judges place too much emphasis on rights of individual + minority groups”

Answer 3

. focused on immigrants’ rights
. “Rwanda is not a safe third country”
. breached HRA + international + domestic law

Question 4

criticism of Rwanda- too tied up with their “liberal” agenda

Answer 4

. SC opposing Conservative policy
. right-wing policy- British values
. liberal idea to support immigrants- more tolerant

Question 5

criticism of Rwanda- “Failed to take into account interests of wider society and their needs for security”

Answer 5

. 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

Question 6

criticism of Rwanda- “Have handicapped the work of the gov, the police + other bodies- tough stance on immigration”

Answer 6

. every time gov amend the policy, it is blocked
- delaying further
- invested time + money on policy
. stopping Rwanda, not other third countries

Question 7

criticism of Rwanda- “Become too powerful, similar to the US”

Answer 7

. too independent- Constitutional Reform Act 2005
. will not be removed if oppose gov
. unelected

Question 8

ultra vires

Answer 8

. going beyond one’s power

Question 9

par sov

Answer 9

. parliament’s power as supreme law making body to create, reverse, or amend legislation

Question 10

judicial independence

Answer 10

. the separation of the judicial body
. Constitutional Reform Act 2005
. judges can’t be removed if oppose gov
- gov doesn’t appoint

Question 11

judicial neutrality

Answer 11

. the judiciary is free from political bias

Question 12

judicial review

Answer 12

. a court proceeding where the lawfulness of a public body (can be gov) is challenged

Question 13

European Court of Human Rights

Answer 13

. an international court in Strasburg, which upholds human rights

Question 14

Human Rights Act 1998

Answer 14

. 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

Question 15

judicial precedent

Answer 15

. judges look at previous cases in common law

Question 16

rule of law

Answer 16

. no one’s above the law
. law is applied equally

Question 17

2017 Gina Miller- triggering Article 50

Answer 17

. 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

Question 18

2019 Gina Miller- prorogation of Parliament

Answer 18

. 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

Question 19

judiciary defence- upholding key principles

Answer 19

. 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

Question 20

judiciary defence- upholding rule of law

Answer 20

. 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

Question 21

judiciary defence- protecting civil liberties

Answer 21

. 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

Question 22

judges are not too powerful- declaration of incompatibility

Answer 22

. 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)

Question 23

declaration of incompatibility- negative

Answer 23

. 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

Question 24

judges are not too powerful- ECHR can be ignored

Answer 24

. 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

Question 25

judges are not too powerful- Gender Recognition Bill Section 35

Answer 25

. 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

Question 26

judges are not too powerful- courts will often side with gov

Answer 26

. 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

Question 27

judges are not too powerful- ‘bias’ + ‘soft’ rulings overstate

Answer 27

. 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

Question 28

judges are not too powerful- Wayne Couzens whole life sentence 2021

Answer 28

. 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

Question 29

judges are not too powerful- cake row

Answer 29

. 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)

Question 30

judges are not too powerful- diplomatic immunity + slavery case 2022

Answer 30

. 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”