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UK Politics (AK) > Judiciary > Flashcards

Judiciary Flashcards

1
Q

judiciary

A

refers collectively to all judges

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2
Q

when was the supreme court introduced

A

2009

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3
Q

what is the main role of the judiciary

A

interpret + administer law e.g judges decide ‘reasonable force’ when referring to power of a police officer

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4
Q

give an example of when the judiciary has been political in the UK

A

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

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5
Q

cases which have challenged the government to act lawfully

A

independent living fund challenging decision by work and state pensions to close the independent living fund for disabled people

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6
Q

what came before the supreme court

A

appeal committee HoL 12 law lords

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7
Q

functions of the supreme court

A

act as final court of appeal

clarify meaning of law

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8
Q

requirements needed before being considered an appointment as a justice

A

high judicial office at least 2 years

qualifying practitioner 15 years

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9
Q

qualifying practitioner

A

someone who has a senior court qualification

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10
Q

how are vacancies in the UK supreme court filled

A

by a HoC selection commission wi 5 members

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11
Q

who are the 5 members of the HoC commission

A

president+deputy of SC, a member of the JAC, one from JAB scotland and JAC in NI

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12
Q

JAC

A

judicial appointment commission

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13
Q

JAB

A

judicial appointments board

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14
Q

what was wrong with the previous court system

A

undermined seperation of powers, elitist judges

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15
Q

what was the old system of appointing judges

A

by the monarch on the advice of the prime minister

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16
Q

the rule of law

A

key doctrine of uk constitution

justice for all

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17
Q

what did A.V Dicey say about the rule of law

A

one of the ‘twin pillars’ of the constitution

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18
Q

how many strands does the rule of law have according to dicey and what are they

A

no one punished without trial
no one is above the law
general principles of constitution result from judges’ decision not parliamentary statute

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19
Q

give an example of when the government acted unconstitutionally in regards to punishment without trial

A

terrorist suspects due to measures passed in 2001

e.g indefinite detention, freezing their assets

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20
Q

how have MPs tried to act above the law

A

using parliamentary privilege to end court proceedings e.g expenses scandal 2009

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21
Q

how can legal precedent be over turned

A

act of parliament

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22
Q

judicial independence

A

free from political control

apply justice properly without fear or consequences

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23
Q

judicial neutrality

A

operate without personal bias

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24
Q

what are the 7 aspects which maintain judicial independence

A 
tenure 
guaranteed salaries 
offence of contempt of court 
growing seperation of powers 
independent appointment 
training and experience
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25
Q

what does security of tenure mean

A

open ended term for judges

helps them stay independent as can’t be blackmailed by the threat of being sacked

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26
Q

what does guaranteed salaries from the paid consolidated fund mean

A

paid automatically

MPs are unable to manipulate salaries to gain influence

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27
Q

what does the offence of contempt of court mean

A

ministers, media and legal individuals not allowed to speak publicly during legal proceedings

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28
Q

what does growing seperation of powers and how does it ensure independence for judges

A

creation of new supreme court

downgrading post of lord chancellor

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29
Q

how does an independent appointment system ensure independent judges

A

more transparency of the process with less political bias

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30
Q

how does training and experience of judges ensure independence

A

most senior judges served as an ‘apprenticeship’ as barristers
take pride in their legal standing

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31
Q

the uk judiciary has become more politicised in recent years (YES)

A

HRA 1998 judges rule on merit of statute law not its application
politicians broke convention publicly criticising rulings handed down by ministers

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32
Q

give example of MPs breaking legal convention of not speaking about cases publicly

A

David Davis reacted to November 2016 high court ruling stated gov couldn’t trigger Article 50 without parliamentary approval

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33
Q

what was the factortame case (1990)

politicising UK judiciary

A

precedent that UK courts can suspend Acts of Parliament where they contradict EU law (undermining PS)

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34
Q

UK judiciary has become more politicised in recent years

A

JAC creation seperate
increased conflict between politicians and judiciary
(courts prepared to challenge government
senior judges benefit from tenure and consolidated fund

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35
Q

what are the four ways that judicial neutrality is guaranteed?

A

anonymity of senior judges
restriction on policy activity
legal justifications
high level training

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36
Q

how does anonymity of senior judges ensure neutrality

A

rarely speak out on issues publicly

operate away from public eye

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37
Q

how does restriction on policy activity ensure neutrality among judges

A

not supposed to campaign for political party/PG

views shouldn’t be on public record

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38
Q

how does legal justifications of judgement ensure neutrality among judges

A

explain how decisions are rooted in law, less likely they are guided by bias

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39
Q

how does a high level of training ensure neutrality among judges

A

served as barristers

elevated to high ranks shows they can put personal belief aside

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40
Q

what are the threats to judicial neutrality

A

judges come from narrow recruiting pool

most have same life experience, different to most people they deal with

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41
Q

arguably, what act has politicised the judiciary

A

Human Rights Act 1998

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42
Q

define judicial review

A

judges review actions of public bodies to see if they acted lawfully

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43
Q

why is judicial review so important

A

establishing common law

clarify meaning of the law rather than just applying it

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44
Q

apart from reviewing actions of public bodies what else is judicial review for?

A

hearing cases previously heard at lower courts

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45
Q

why is judicial review less important in the UK than in the US

A

UK has parliamentary sovereignty

US can strike down statutes that are unconstitutional

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46
Q

define ultra vires

A

latin for ‘beyond the powers of authority’

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47
Q

why has judicial review grown

A

importance of EU law

elevated status on ECHR

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48
Q

Factortame

A

a case in which is was established that UK courts can suspend UK statutes if it violates EU law

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49
Q

what did the Treaty of Rome establish

A

came under the European communities Act 1872

EU law takes precedent

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50
Q

give an example of a case in the US relating to EU law

A

United States of America v Nolan (2015)

51
Q

what was the United state v Nolan case about

A

claim against US government under trade unions and relations act 1992

52
Q

what did Nolan argue in the case against the gov

A

more consultation with workers representatives before redundancies were made

53
Q

what did the gov argue in the case against Nolan

A

secretary of state had acted ultra vires under the European communities act 1972

54
Q

what was the outcome of the US v Nolan case

A

went in Nolans favour

55
Q

what is the European convention on human rights

A

sets out rights of citizens and is incorporated in the human rights act 1998

56
Q

why is the human rights act not superior to parliamentary statute

A

based on europes European convention of human rights and not eu law

57
Q

what powers does the supreme court have in regards to the human rights act

A

can only deem incompatible with statute law, parliament is not obliged to amend

58
Q

what is the HRA said to have

A

persuasive authority

59
Q

derogation

A

country is exempt from observing a law/regulation it’d previously agreed to abide by
stated in article 15 of HRA

60
Q

give an example of a supreme court case involving human rights act

A

R. Tigere v secretary of state for business, innovation and skills (2015)

61
Q

what was R. Tigere v secretary of state for business, innovation and skills (2015) about

A

tigere from Zambia, came uk 6yr old
not eligible for student loan
couldn’t apply for indefinite leave to remain in UK till 2018

62
Q

what was the result of R. Tigere v secretary of state for business, innovation and skills (2015)

A

accepted appeal on grounds of negative impact on appellant’s rights under article 2 of ECHR and article 14

63
Q

how has diminishing the role of the lord chancellor had an impact on the work of executive and parliament

A

CRA 2005 enhance judicial independence

judges feel can hold gov to account more easily

64
Q

how has the ECHR and HRA had an impact on the work of the executive and parliament

A

senior judges question acts of parliament+ actions of those in executive

65
Q

how did the president established under the factortame case (1990) impact the work of the executive and parliament

A

judges can suspend actions of parli + exec if breach EU law

66
Q

how did the extension of EU law in the Maastricht treaty (1992) impact the work of the executive and parliament

A

brough senior judges into conflict with exec+parliament over more policy areas than before

67
Q

what is the indirect impact of an increase in power of the judiciary on the work of parliament and the executive

A

look to prevent conflict by ensuring all legislation applies with HRA and EU law before passed

68
Q

how did the HRA not technically impact the work of parliament

A

courts only issue ‘declaration of incompatibiltiy’

parliament under no legal obligation to follow this ruling

69
Q

how can the decision by judges to rule ultra vires be undermined by parliament and therefore not impact their work

A

ministers use exec control of parliament to pass retrospective legislation which legitimizes their actions `

70
Q

how can the Maastricht be seen to have not had that big of an impact on parliament

A

many areas of public policy remain in hands of parliament

limits scope for judicial action

71
Q

why can the supreme court not strike down acts of parliament

A

no codified constitution with set of ‘fundamental laws’

72
Q

what are the four main areas that the supreme courts’ power is limited to

A

reviewing earlier legal precedent established in common or case law
ultra vires rulings
address disputes about EU law
declarations of incompatibility

73
Q

define quasi-legislative

A

impact of difference in supreme court’s interpretation appear equivalent to a legislative change, even if theres no change to common law

74
Q

who is said have quasi legislative power

A

supreme court

they can establish precedent through common law

75
Q

what committee did the supreme court replace

A

appellate

76
Q

whats the difference between power and authority

A

power - ability to do

authority- the right to do

77
Q

who identified the three sources of authority

A

german sociologist Max Weber

78
Q

what were the three sources of authority weber identified

A

traditional authority
charismatic authority
legal rational authority

79
Q

what is traditional authority

A

based on established traditions and customs

80
Q

what is charismatic authority

A

based on characteristics of leaders

81
Q

what is legal rational authority

A

granted by formal process e.g election

82
Q

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

A

changed as an institution therefore changes the view which other institutions, media and wider public view it

83
Q

what factors have enhanced the supreme court’s authority

A

more independent appointment process

separation of power (physically aswell)

84
Q

how was the ECHR established

A

Council of Europe

NOT European union

85
Q

what is the council of Europe

A

founded in 1949 by Britain and 9 other states

86
Q

what would have to ECHR if we leave the EU

A

wouldn’t remove our obligations under ECHR

87
Q

what’s the difference between the European court of Human Rights and European Court of Justice

A

ECHR is not an EU institution+was established by council of Europe
European court of justice is supreme court of eu

88
Q

what would Brexit involve (impact on the supreme court)

A

withdraw treaty of rome, no eu law precedent

89
Q

why would the withdrawal of the treaty of rome impact the supreme court

A

proportion of current case load relates to eu

removing court above sc enhances its power

90
Q

how many judicial review applications were there in 1998

A

4,500 applicants (no. tripled in a decade)

91
Q

judicial review applications increase 2000-2013

A 
2000= 4,300
2013= 15,700
92
Q

why is it important for judges to be independent

A

form an effective check

citizens need to feel rights are protected

93
Q

Who can seek judicial review

A

Anyone with standing

Has to be affected by the issue at hand

94
Q

Why is judicial review weaker in the uk than in countries with codified constitutions

A

Codified constitutions are seen as fundamental law

Judges can’t review acts of Parliament

95
Q

How have sections 3 and 4 of the human rights act impacted judicial review

A

Bought rights contained in European convention

96
Q

How has section 6 of HRA impacted judicial review

A

Unlawful for public authority to act in way incompatible with convention rights

97
Q

How has devolution impacted judicial review

A

Devolution statutes require devolved legislatures and executive to respect rights in ECHR

98
Q

What are the main difference between civil and criminal courts

A

Civil=disputes between private citizens/ citizens+states

Criminal= accused of breaking criminal law

99
Q

What is a tribunal

A

Deals with disputes between individuals+ specific state agencies.

100
Q

What is the European court of justice

A

Highest EU court, ensure EU law is equally applied across all member states
Sets precedent

101
Q

What is the European court of human rights

A

Upholds European convention on human rights

Should be “taken into account” by Supreme Court

102
Q

What is the main function performed by the lower courts in England and Wales

A

Uphold+apply law

Hand out sentencing

103
Q

What did lady hale say about the diversity of the Supreme Court

A

“We are all a product of out background and our experiences,so the greater diversity, the better”

104
Q

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)

A

80%

105
Q

In 2004 what percentage of judges were women (criticisms of the judiciary)

A

16%

Only 9% senior judges

106
Q

How many members of the court of appeal comes from an ethnic minority

A

1 (compared to 8% of population)

107
Q

What does section 64 of the constitutional reform act say about the judicial appointments commission

A

‘Must have regard to the need to encourage diversity’

108
Q

What strategy was launched by the lord chancellor

A

2006- aimed to increase the number of women+ethnic minority students

109
Q

How are judges appointed?

A

JAC provides clear process and rules
Review and interview candidates
Passed to lord chancellor (can reject first candidate, if so has to accept second)

110
Q

How are members of the JAC chosen

A

12 through open competition

3 nominated by Judge’s council

111
Q

what is good about the JAC

A

Appoint based on merit
Fair, neutral independent body
Supposed to eliminate ‘old boys club’

112
Q

How are appointments to the Supreme Court made

A

Supreme Court selection commission

113
Q

What was the process for selecting judges like before the constitutional reform act (2005)

A

lord chancellor and team would ‘talent scout’

Vacancies weren’t advertised, encouraged to apply ‘tap on the shoulder’

114
Q

Why was the judiciary less independent before constitutional reform act

A

Lords was highest court of appeal

Prime minister appointed law lords on recommendation of lord chancellor

115
Q

Give an example of appointements made by the lord chancellor demonstrating an attempt to modernise the judiciary

A

Chancellor Lord Mackay 1990s appointed first black female judge (Patricia Scotland)

116
Q

Who is the lord chancellor

A

Politician, put into role by current government
Not a member of the judiciary
Could operate with level of political party agenda

117
Q

What is the selection process for senior judges an important factor in determining

A

Independent judiciary

118
Q

What Act has improved the independence of the judiciary

A

Constitutional reform act 2005

119
Q

What did the constitutional reform act 2005 fail to do to the judiciary

A

Diversity

Still overwhelming white, male + privately educated

120
Q

What two things have given UK judges more opportunity to challenge actions of the government

A

Human Rights Act (1998) and membership of the EU

121
Q

What are the main grounds for judicial review

A

Illegality
Procedural impropriety (unfairness)
Irrational

122
Q

Why is judicial review weaker in the UK

A

uncodified constitution

Parliament in sovereign and laws aren’t higher

123
Q

How has section 6 of the HRA impacted judicial review

A

Unlawful for public authority to act in way which incompatible with HRA

124
Q

How has devolution impacted judicial review

A

They have to respect HRA as well

UK Politics (AK) (5 decks)

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