Judiciary Flashcards
1
Q
What is judicial neutrality? [3]
A
- That judges have no political sympathies or ideological leanings
- But this is practically impossible as no one can be completely impartial and objective
- So, judges need to make sure that their own views do not interfere with their work and professional behaviour
2
Q
Upholding Judicial Neutrality:
Political Restrictions [3]
A
- Can’t be members of political parties (even though Magistrates can)
- Can’t be members of pressure groups
- Can’t engage themselves in political activities
3
Q
Upholding Judicial Neutrality:
Legal Training [2]
A
- to be a judge one needs 20 to 30 years experience of extensive legal training e.g. as barristers.
- to then allow your own personal views to interfere with your work would be JUST RIDICULOUS after ALL THAT TRAINING wheeze
- the ability to act impartially is strengthened over the extensive period of training
4
Q
Upholding Judicial Neutrality:
Accountability [2]
A
- all judges must explain their rulings
- they must highlight the points of law that have affected them
- also upheld by appeals, cases can be reheard by a higher courts
5
Q
Upholding Judicial Neutrality:
Not Public Figures [4]
A
- Judges are not allowed to engage in political activity
- Not allowed to make public speeches and announce their views to the public
- The ‘Kilmuir rules’ issued in 1950s forbade judges from participating in public debates
- however these rules have been relaxed since 1980s
6
Q
Why has it been suggested that Judges aren’t neutral? [4]
A
- Griffiths (1997) argued that a conservative bias tends to operate within the senior judiciary
- most judges are white, male, and middle aged
- most judges were privately educated (70%), and many went to oxbridge (78%)
- often noted that judges are biased against women, ethnic minorities and the poor (as they don’t come from similar backgrounds to them)
- the rule that judges can’t take part in public debates was demolished in 1980s
- many judges began to speak in support for human rights and civil liberties e.g. 1998 law lords ruling that the former chilean dictator, Pinochet, should be extradited to Spain to face charges of murder, torture and genocide.
- in 2007 out of 639 judges, 73 were female
- in 2007, of 108 High Court Judges, only one was from an ethnic minority
7
Q
Independence:
Appointment Process
A
- Judges are meant to be appointed without any political interference, as they could be selected to have a political bias towards the government of the day.
- When judges were appointed by the PM and Lord Chancellor, it was difficult to rule out influence
- Judicial Appointments Commission has introduced greater independence.
8
Q
Independence:
Security of Tenure
A
- Judges are appointed until the retirement age of 70.
- They face no threat of demotion or removal, which could have affected their decision making
- A judge hasn’t been sacked since 1830s.
9
Q
Independence:
Pay
A
- Judges are paid from an independent fund, which is not subject to annual review by the House of Commons
- therefore they’re safeguarded from political influence
- salaries are determined Senior Salaries Review Body
10
Q
Independence:
Freedom from criticism
A
- MPs and peers are forbidden from criticising the decisions of the judges and discussion and debate is not allowed in case of making influence over decisions.
- A case falls under ‘sub judice’ once a legal proceeding has begun
- meaning that no discussion can take place within Parliament as to not influence the outcome
- this also limits the information that gets through to the media
11
Q
In recent years how have judges become more independent?
A
- Constitutional Reform Act (2005):
Changed the way judges are appointed
Created a Supreme Court (which didn’t come into effect until 2009)
Changed the role of the Lord Chancelllor
12
Q
How did changing the way judges are appointed, from the constitutional reform act, help judges to become more independent?
A
High Court judges and junior judges were appointed by the Lord Chancellor
13
Q
Role of Judges:
Preside (take control) over Court Proceedings
A
- ensure fair trail
- makes sure that both sides follow the rules of court procedures
- also serve as a source of knowledge expertise
- e.g. provide advice to juries in criminal cases on point of law and possibly directing a verdict
14
Q
Role of Judges:
Interpret and apply law
A
- Once Parliament has passed an Act, it then falls to the courts to apply the statute in a particular case. This can lead to difficulties where the facts of the case may not have been envisaged by Parliament or where there exist drafting errors or ambiguity in the statute.
- There exists The Interpretation Act of 1978 which provides certain basic definitions. In addition the courts have developed rules to assist judges in interpreting statutes.
15
Q
Role of Judges:
‘Make’ law in certain cases
A
- Laws mean what judges say they mean
- Judges can only interpret Acts of Parliament
- some laws are more judge made than others
- they determine the nature of common law which is built up on the basis of judicial precedent
- ‘case law’ is made up of a collection of decisions made by judges
16
Q
Role of Judges:
Decide sentencing in criminal cases
A
- Traditionally have had a free hand in deciding what sentences to hand out
- but their freedom has been reduced due to the wider use of mandatory sentences
- Lord Phillips (Lord Chief Justice) in 2005 criticised the wider use of mandatory sentences
17
Q
Role of Judges:
Chair public inquires and commisions
A
- due to being impartial and neutral
- but they come into close contact with ministers and this may affect their independence and could give them a pro-government bias
- e.g. Lord Justice Leveson was appointed as Chairman of the Inquiry.
18
Q
What is the Rule of Law?
A
- phrase can be traced back to the 17th century
- basic principle of the unwritten constitution
- everyone is equal before the law; law should apply equally to all
- A. V. Dicey said rule of law ensures ‘government of laws’ not a ‘government of men’
- the alternative to the rule of law is arbitrary government
- John Locke said ‘wherever law ends, tyranny begins’
BUT
- Harden and Lewis (1988) described the rule of law as a ‘noble lie’
19
Q
Features of Rule of Law:
No one is ‘above’ the law
A
- everyone is subject to law, including Prime Ministers, ministers, public officials etc as well as other members of society
- ensures public officials don’t exceed their power and use it responsibly and reasonably
- upheld through judicial reviews and administrative law which provides oversight over government
BUT
- the use of the prerogative powers exercised by ministers and the PM are not subject to judicial oversight
- MPs are not subject to legal restrictions on what they can say in parliament
- Parliament is sovereign - it can make and unmake laws, therefore it is ‘above the law’
- the Queen is not properly subject to the law
20
Q
Features of Rule of Law:
Equality before the law
A
- everyone has the same legal rights and equal access to the legal system
- judges cannot be prejudice in court system
- gender, race, age, ethnicity must be irrelevant to how people are treated
BUT
- Judges tend to be biased against women, ethnic minorities and the poor
- Only the wealthy can afford top lawyers therefore the poor can be excluded
21
Q
Features of Rule of Law:
The law is always applied
A
- disputes must be resolved by the application of the law rather than by other means
- people can only be penalised through the due process of law; by no other means
- there must be punishment for breaches of law
BUT
- not all crimes are reported and therefore not legally addressed
- some crimes go unnoticed through lack of resources of the police
- ‘trial by media’ means that people may be punished without legal proceedings e.g. the exposure of Nigella Lawson’s drug taking dominated the front pages whilst court procedures were taking place
22
Q
Features of Rule of Law:
Safeguards individuals from the state
A
- if people’s rights have been infringed, they should be able to protect themselves through law
- rule of law should defend human rights
- sage guards individuals from the state
BUT
- we don’t have an entrenched bill of rights
- HRA can be set aside by Parliament
- access to European Court of Human Rights is expensive and time consuming
23
Q
In what way does the HRA (1998) protect Civil Liberties? and what are its benefits?
A
- came into effect in 2000
- incorporated the European Convention on Human Rights into UK law
- enhances judges role on checking executive power
- If a convention cannot be reconciled with Convention Rights, Parliament is forced to revise the piece of legislation
- HRA requires the judiciary to interpret legislation in a way that is compatible with Convention Rights
- allows public to know where they stand in society by making an explicit and codified legal definition of individual rights
- educational benefits of HRA has encouraged citizens to be more assertive in protecting their rights
- supporters argue that HRA has significant strengthened the ability for judges to apply the rule of law and uphold individual rights
- HRA is a good benefit of the UK’s flexible and pragmatic constitution
24
Q
What are the disadvantages that come with the HRA [5]
A
- not entrenched, therefore cannot overturn Acts of Parliament
- HRA has said to have an unbalanced view of civil liberties, suggests that it doesn’t protect wider society
- the ECHR has been supported by both Labour and Conservative since the 1950s and there is nothing new about HRA.
- Through judicial interpetation, judges are effectively allowed to ‘rewrite’ legislation which makes them too strong.
- Conservatives have argued that the HRA consitutes an abstract set of principles which can lead to confusions once applied.
25
Q
What are some examples of rights established under the European Convention? [5]
A
- Right to life
- Right to fair trial
- Right to respect for private and family life
- Freedom of expression
- Right to free elections and a secret ballot
26
Q
When has the HRA been used to protect or extend individual rights? [2]
A
- in 2004 rights for a married couple to succeed to a tenancy after a tenants death was extended to homosexual couples
- in 2010 the Supreme Court declared that measures to freeze the assets of terrorist suspects were unlawful
27
Q
What are civil liberties?
A
- Civil liberties are basic rights and freedoms granted to citizens of a country through national common or statute law
- they are freedoms from government
- civil liberties include: freedom of speech, freedom of religion, freedom of the press
28
Q
Why have there been conflicts in recent years between the executive and senior judges? [3]
A
- senior judiciary have been challenging the executive more over human rights
- HRA widened the ability of judges to intervene with politics
- governments have often enhanced their own powers by reducing civil liberties and individual rights
29
Q
What happened during Labour years of 1997-2010 in terms of civil liberties and humans rights? [2]
A
- major advances were made in individual rights e.g. HRA, freedom of information act (2000)
- widely welcomed by groups such as Charter 8, Liberty, and Freedom and Law
- BUT many pieces of legislation strengthened the state and weakened the rights of the individual, and drifted towards authoritarianism for example:
1. It was made more difficult for people accused of theft, burglary and assault to have a jury trial in 1999
2. restrictions were placed on offenders - imposed Anti- Social Behaviour Orders, 1999
3. Identity card to be imposed among the british people in 2006 (plans were later abandoned by collation)
30
Q
What were the Labour government’s most controversial measures?
A
- anti-terrorism legislation - passed in the aftermath of 9/11 allowing government to detain people without trial which can be seen by some as a core civil liberty
31
Q
What were the three major pieces of anti-terrorism legislation?
A
- Anti-terrorism, Crime and Security Act 2001 - detention without trial against suspect terrorists (2004 - nine law lords ordered the release of nine terrorist suspects from Belmarsh Prison)
- The Prevention of Terrorism Act 2005 - ‘control orders’ allowing the secretary of state to impose various restrictions on the liberty of individuals who could not be deported
- The Terrorism Act 2006 - enhanced government’s powers to deport people from the UK who were considered to be promoting terrorism
32
Q
Arguments for an entrenched bill of rights:
Accountable Government
A
- ensures that government is based on laws, not arbitrary wishes of ministers
- the establishment of higher law is the only way in which the rule of law can be upheld properly
- all helps to improve trust
