Judiciary Flashcards
Judicial review
Power of judiciary to review government actions/laws and decrees and of the other branches of govt.
Example of US judiciary striking down laws
“Defence of marriage act”
In which ways can judges review the govt?
- Declaration of ultra vires
- Compatibility with EU law
- Compatibility with HRA
How can the govt respond to legislation that is incompatible with HRA?
Remedial order. Presented within 60 days to alter the relevant law.
What is judicial independence
Judiciary needs to be kept separate from other branches of government. They should be free from political influence so that they can apply the law with no fear of negative consequences.
Free from external bias.
How is judicial independence maintained?
- Security of tenure - keep jobs until 70
- Protected salaries free from political interference - senior salaries review body
- Sub judice - once legal proceedings begin, MPs and Lords are not allowed to discuss the case. Reduction of political pressure
‘Contempt of court’ - Training and professionalism - spend years training, wouldn’t risk their job
- Highest legal power
- Independent Supreme Court with less interference in selection process. (Judicial appointments commission)
- Senior judges are forbidden from engaging in active politics
What is judicial neutrality
Idea that judges should be free from internal bias and prejudice. They should not have political sympathies.
How is judicial neutrality maintained
- Judges must not be politically active.
- Show no favour to any group in society.
- Well trained professionals who make decisions based on law.
- Judges in UK are not public figures unlike US
Super injunctions
Courts grant an individual right to privacy to prevent the media from reporting on a particular story.
David Cameron said he was uneasy about judges de facto developing a privacy law
Parliamentary privilege invoked by MPs to break this.
How does the judiciary control government power?
- Upholds rule of law
- Uphold civil liberties
- Declarations of ultra vires
- Prevent govt coming into conflict with EU law
Strengths of judiciary checking govt power
- Ultra vires (Gove BSF programme and suspected terrorist ban assets case 2010 Ahmed vs treasury)
- Uphold rule of law - Chris Huhne
- Declaration of incompatibility with HRA/ECHR (anti terrorism crime and security act 2001 and HRA) police act 1997
- Declaration of incompatibility with EU law (janah vs Libya 2013 “dis apply” statute law and factor tame 1991) - doctrine of supremacy
- Judiciary can strike down executive acts which offend human rights (Abu qatada deportation case)
Weaknesses of judiciary checking govt power
- Parliament can circumvent judges by passing new law (terrorist asset freezing act 2010 and prevention of terrorism act 2005)
- Judges cannot be proactive rendering ultra vires ineffective
- Declarations of incompatibility can be ignored or resolved with fast track remedial orders (stop and search powers in terrorism act 2000)
- Parliament can alter the legal framework judges use (conservative commitment to replace HRA, constitutional reform act 2005, increased cost of applying for judicial review from 60 to 235)
Should there be a entrenched bill of rights? Yes
- More accountable government (Texas vs Johnson 1989 flag burning laws)
- Greater protection of civil liberties
- Educational benefits (jack straw quote)
- Consensus on rights
Should there be an entrenched bill of rights? No
- Judicial tyranny (“unchecked” SC in US”
- Increased politicisation compromising neutrality
- Promotion of a rights culture
- Creation of artificial rights
Does the judiciary protect civil liberties? YES
- Passage of HRA has added a codified set to refer to.
- Guardians of the rule of law
- By hearing cases of discrimination
- Upholding ECHR and common law rights through judicial review
- Independent judiciary
- Cases can be taken to ECtHR
- Judicial review on govt
- By acting in legislature - can protect rights and influence govt by expressing views
