Judiciary Flashcards
judiciary
refers collectively to all judges
when was the supreme court introduced
2009
what is the main role of the judiciary
interpret + administer law e.g judges decide ‘reasonable force’ when referring to power of a police officer
give an example of when the judiciary has been political in the UK
Livingston asked judge if it was legal for sec of state to dismiss Bob Kiley from london trans post
underlying issue of privatising transport, gov wanted but major didn’t
cases which have challenged the government to act lawfully
independent living fund challenging decision by work and state pensions to close the independent living fund for disabled people
what came before the supreme court
appeal committee HoL 12 law lords
functions of the supreme court
act as final court of appeal
clarify meaning of law
requirements needed before being considered an appointment as a justice
high judicial office at least 2 years
qualifying practitioner 15 years
qualifying practitioner
someone who has a senior court qualification
how are vacancies in the UK supreme court filled
by a HoC selection commission wi 5 members
who are the 5 members of the HoC commission
president+deputy of SC, a member of the JAC, one from JAB scotland and JAC in NI
JAC
judicial appointment commission
JAB
judicial appointments board
what was wrong with the previous court system
undermined seperation of powers, elitist judges
what was the old system of appointing judges
by the monarch on the advice of the prime minister
the rule of law
key doctrine of uk constitution
justice for all
what did A.V Dicey say about the rule of law
one of the ‘twin pillars’ of the constitution
how many strands does the rule of law have according to dicey and what are they
no one punished without trial
no one is above the law
general principles of constitution result from judges’ decision not parliamentary statute
give an example of when the government acted unconstitutionally in regards to punishment without trial
terrorist suspects due to measures passed in 2001
e.g indefinite detention, freezing their assets
how have MPs tried to act above the law
using parliamentary privilege to end court proceedings e.g expenses scandal 2009
how can legal precedent be over turned
act of parliament
judicial independence
free from political control
apply justice properly without fear or consequences
judicial neutrality
operate without personal bias
what are the 7 aspects which maintain judicial independence
tenure guaranteed salaries offence of contempt of court growing seperation of powers independent appointment training and experience
what does security of tenure mean
open ended term for judges
helps them stay independent as can’t be blackmailed by the threat of being sacked
what does guaranteed salaries from the paid consolidated fund mean
paid automatically
MPs are unable to manipulate salaries to gain influence
what does the offence of contempt of court mean
ministers, media and legal individuals not allowed to speak publicly during legal proceedings
what does growing seperation of powers and how does it ensure independence for judges
creation of new supreme court
downgrading post of lord chancellor
how does an independent appointment system ensure independent judges
more transparency of the process with less political bias
how does training and experience of judges ensure independence
most senior judges served as an ‘apprenticeship’ as barristers
take pride in their legal standing
the uk judiciary has become more politicised in recent years (YES)
HRA 1998 judges rule on merit of statute law not its application
politicians broke convention publicly criticising rulings handed down by ministers
give example of MPs breaking legal convention of not speaking about cases publicly
David Davis reacted to November 2016 high court ruling stated gov couldn’t trigger Article 50 without parliamentary approval
what was the factortame case (1990)
politicising UK judiciary
precedent that UK courts can suspend Acts of Parliament where they contradict EU law (undermining PS)
UK judiciary has become more politicised in recent years
JAC creation seperate
increased conflict between politicians and judiciary
(courts prepared to challenge government
senior judges benefit from tenure and consolidated fund
what are the four ways that judicial neutrality is guaranteed?
anonymity of senior judges
restriction on policy activity
legal justifications
high level training
how does anonymity of senior judges ensure neutrality
rarely speak out on issues publicly
operate away from public eye
how does restriction on policy activity ensure neutrality among judges
not supposed to campaign for political party/PG
views shouldn’t be on public record
how does legal justifications of judgement ensure neutrality among judges
explain how decisions are rooted in law, less likely they are guided by bias
how does a high level of training ensure neutrality among judges
served as barristers
elevated to high ranks shows they can put personal belief aside
what are the threats to judicial neutrality
judges come from narrow recruiting pool
most have same life experience, different to most people they deal with
arguably, what act has politicised the judiciary
Human Rights Act 1998
define judicial review
judges review actions of public bodies to see if they acted lawfully
why is judicial review so important
establishing common law
clarify meaning of the law rather than just applying it
apart from reviewing actions of public bodies what else is judicial review for?
hearing cases previously heard at lower courts
why is judicial review less important in the UK than in the US
UK has parliamentary sovereignty
US can strike down statutes that are unconstitutional
define ultra vires
latin for ‘beyond the powers of authority’
why has judicial review grown
importance of EU law
elevated status on ECHR
Factortame
a case in which is was established that UK courts can suspend UK statutes if it violates EU law
what did the Treaty of Rome establish
came under the European communities Act 1872
EU law takes precedent
give an example of a case in the US relating to EU law
United States of America v Nolan (2015)
what was the United state v Nolan case about
claim against US government under trade unions and relations act 1992
what did Nolan argue in the case against the gov
more consultation with workers representatives before redundancies were made
what did the gov argue in the case against Nolan
secretary of state had acted ultra vires under the European communities act 1972
what was the outcome of the US v Nolan case
went in Nolans favour
what is the European convention on human rights
sets out rights of citizens and is incorporated in the human rights act 1998
why is the human rights act not superior to parliamentary statute
based on europes European convention of human rights and not eu law
what powers does the supreme court have in regards to the human rights act
can only deem incompatible with statute law, parliament is not obliged to amend
what is the HRA said to have
persuasive authority
derogation
country is exempt from observing a law/regulation it’d previously agreed to abide by
stated in article 15 of HRA
give an example of a supreme court case involving human rights act
R. Tigere v secretary of state for business, innovation and skills (2015)
what was R. Tigere v secretary of state for business, innovation and skills (2015) about
tigere from Zambia, came uk 6yr old
not eligible for student loan
couldn’t apply for indefinite leave to remain in UK till 2018
what was the result of R. Tigere v secretary of state for business, innovation and skills (2015)
accepted appeal on grounds of negative impact on appellant’s rights under article 2 of ECHR and article 14
how has diminishing the role of the lord chancellor had an impact on the work of executive and parliament
CRA 2005 enhance judicial independence
judges feel can hold gov to account more easily
how has the ECHR and HRA had an impact on the work of the executive and parliament
senior judges question acts of parliament+ actions of those in executive
how did the president established under the factortame case (1990) impact the work of the executive and parliament
judges can suspend actions of parli + exec if breach EU law
how did the extension of EU law in the Maastricht treaty (1992) impact the work of the executive and parliament
brough senior judges into conflict with exec+parliament over more policy areas than before
what is the indirect impact of an increase in power of the judiciary on the work of parliament and the executive
look to prevent conflict by ensuring all legislation applies with HRA and EU law before passed
how did the HRA not technically impact the work of parliament
courts only issue ‘declaration of incompatibiltiy’
parliament under no legal obligation to follow this ruling
how can the decision by judges to rule ultra vires be undermined by parliament and therefore not impact their work
ministers use exec control of parliament to pass retrospective legislation which legitimizes their actions `
how can the Maastricht be seen to have not had that big of an impact on parliament
many areas of public policy remain in hands of parliament
limits scope for judicial action
why can the supreme court not strike down acts of parliament
no codified constitution with set of ‘fundamental laws’
what are the four main areas that the supreme courts’ power is limited to
reviewing earlier legal precedent established in common or case law
ultra vires rulings
address disputes about EU law
declarations of incompatibility
define quasi-legislative
impact of difference in supreme court’s interpretation appear equivalent to a legislative change, even if theres no change to common law
who is said have quasi legislative power
supreme court
they can establish precedent through common law
what committee did the supreme court replace
appellate
whats the difference between power and authority
power - ability to do
authority- the right to do
who identified the three sources of authority
german sociologist Max Weber
what were the three sources of authority weber identified
traditional authority
charismatic authority
legal rational authority
what is traditional authority
based on established traditions and customs
what is charismatic authority
based on characteristics of leaders
what is legal rational authority
granted by formal process e.g election
although not gaining any more power than the appellate committee or having any of weber’s authority areas, why is the supreme court seen as more powerful
changed as an institution therefore changes the view which other institutions, media and wider public view it
what factors have enhanced the supreme court’s authority
more independent appointment process
separation of power (physically aswell)
how was the ECHR established
Council of Europe
NOT European union
what is the council of Europe
founded in 1949 by Britain and 9 other states
what would have to ECHR if we leave the EU
wouldn’t remove our obligations under ECHR
what’s the difference between the European court of Human Rights and European Court of Justice
ECHR is not an EU institution+was established by council of Europe
European court of justice is supreme court of eu
what would Brexit involve (impact on the supreme court)
withdraw treaty of rome, no eu law precedent
why would the withdrawal of the treaty of rome impact the supreme court
proportion of current case load relates to eu
removing court above sc enhances its power
how many judicial review applications were there in 1998
4,500 applicants (no. tripled in a decade)
judicial review applications increase 2000-2013
2000= 4,300 2013= 15,700
why is it important for judges to be independent
form an effective check
citizens need to feel rights are protected
Who can seek judicial review
Anyone with standing
Has to be affected by the issue at hand
Why is judicial review weaker in the uk than in countries with codified constitutions
Codified constitutions are seen as fundamental law
Judges can’t review acts of Parliament
How have sections 3 and 4 of the human rights act impacted judicial review
Bought rights contained in European convention
How has section 6 of HRA impacted judicial review
Unlawful for public authority to act in way incompatible with convention rights
How has devolution impacted judicial review
Devolution statutes require devolved legislatures and executive to respect rights in ECHR
What are the main difference between civil and criminal courts
Civil=disputes between private citizens/ citizens+states
Criminal= accused of breaking criminal law
What is a tribunal
Deals with disputes between individuals+ specific state agencies.
What is the European court of justice
Highest EU court, ensure EU law is equally applied across all member states
Sets precedent
What is the European court of human rights
Upholds European convention on human rights
Should be “taken into account” by Supreme Court
What is the main function performed by the lower courts in England and Wales
Uphold+apply law
Hand out sentencing
What did lady hale say about the diversity of the Supreme Court
“We are all a product of out background and our experiences,so the greater diversity, the better”
What percentage of lords of appeal, heads of division, Lord justices of appeal and high court judges were educated at Oxford or Cambridge (criticisms of judiciary)
80%
In 2004 what percentage of judges were women (criticisms of the judiciary)
16%
Only 9% senior judges
How many members of the court of appeal comes from an ethnic minority
1 (compared to 8% of population)
What does section 64 of the constitutional reform act say about the judicial appointments commission
‘Must have regard to the need to encourage diversity’
What strategy was launched by the lord chancellor
2006- aimed to increase the number of women+ethnic minority students
How are judges appointed?
JAC provides clear process and rules
Review and interview candidates
Passed to lord chancellor (can reject first candidate, if so has to accept second)
How are members of the JAC chosen
12 through open competition
3 nominated by Judge’s council
what is good about the JAC
Appoint based on merit
Fair, neutral independent body
Supposed to eliminate ‘old boys club’
How are appointments to the Supreme Court made
Supreme Court selection commission
What was the process for selecting judges like before the constitutional reform act (2005)
lord chancellor and team would ‘talent scout’
Vacancies weren’t advertised, encouraged to apply ‘tap on the shoulder’
Why was the judiciary less independent before constitutional reform act
Lords was highest court of appeal
Prime minister appointed law lords on recommendation of lord chancellor
Give an example of appointements made by the lord chancellor demonstrating an attempt to modernise the judiciary
Chancellor Lord Mackay 1990s appointed first black female judge (Patricia Scotland)
Who is the lord chancellor
Politician, put into role by current government
Not a member of the judiciary
Could operate with level of political party agenda
What is the selection process for senior judges an important factor in determining
Independent judiciary
What Act has improved the independence of the judiciary
Constitutional reform act 2005
What did the constitutional reform act 2005 fail to do to the judiciary
Diversity
Still overwhelming white, male + privately educated
What two things have given UK judges more opportunity to challenge actions of the government
Human Rights Act (1998) and membership of the EU
What are the main grounds for judicial review
Illegality
Procedural impropriety (unfairness)
Irrational
Why is judicial review weaker in the UK
uncodified constitution
Parliament in sovereign and laws aren’t higher
How has section 6 of the HRA impacted judicial review
Unlawful for public authority to act in way which incompatible with HRA
How has devolution impacted judicial review
They have to respect HRA as well
