Judiciary Flashcards
1
Q
judiciary
A
refers collectively to all judges
2
Q
when was the supreme court introduced
A
2009
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
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
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
6
Q
what came before the supreme court
A
appeal committee HoL 12 law lords
7
Q
functions of the supreme court
A
act as final court of appeal
clarify meaning of law
8
Q
requirements needed before being considered an appointment as a justice
A
high judicial office at least 2 years
qualifying practitioner 15 years
9
Q
qualifying practitioner
A
someone who has a senior court qualification
10
Q
how are vacancies in the UK supreme court filled
A
by a HoC selection commission wi 5 members
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
12
Q
JAC
A
judicial appointment commission
13
Q
JAB
A
judicial appointments board
14
Q
what was wrong with the previous court system
A
undermined seperation of powers, elitist judges
15
Q
what was the old system of appointing judges
A
by the monarch on the advice of the prime minister
16
Q
the rule of law
A
key doctrine of uk constitution
justice for all
17
Q
what did A.V Dicey say about the rule of law
A
one of the ‘twin pillars’ of the constitution
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
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
20
Q
how have MPs tried to act above the law
A
using parliamentary privilege to end court proceedings e.g expenses scandal 2009
21
Q
how can legal precedent be over turned
A
act of parliament
22
Q
judicial independence
A
free from political control
apply justice properly without fear or consequences
23
Q
judicial neutrality
A
operate without personal bias
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
25
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
26
what does guaranteed salaries from the paid consolidated fund mean
paid automatically
| MPs are unable to manipulate salaries to gain influence
27
what does the offence of contempt of court mean
ministers, media and legal individuals not allowed to speak publicly during legal proceedings
28
what does growing seperation of powers and how does it ensure independence for judges
creation of new supreme court
| downgrading post of lord chancellor
29
how does an independent appointment system ensure independent judges
more transparency of the process with less political bias
30
how does training and experience of judges ensure independence
most senior judges served as an 'apprenticeship' as barristers
take pride in their legal standing
31
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
32
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
33
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)
34
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
35
what are the four ways that judicial neutrality is guaranteed?
anonymity of senior judges
restriction on policy activity
legal justifications
high level training
36
how does anonymity of senior judges ensure neutrality
rarely speak out on issues publicly
| operate away from public eye
37
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
38
how does legal justifications of judgement ensure neutrality among judges
explain how decisions are rooted in law, less likely they are guided by bias
39
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
40
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
41
arguably, what act has politicised the judiciary
Human Rights Act 1998
42
define judicial review
judges review actions of public bodies to see if they acted lawfully
43
why is judicial review so important
establishing common law
| clarify meaning of the law rather than just applying it
44
apart from reviewing actions of public bodies what else is judicial review for?
hearing cases previously heard at lower courts
45
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
46
define ultra vires
latin for 'beyond the powers of authority'
47
why has judicial review grown
importance of EU law
| elevated status on ECHR
48
Factortame
a case in which is was established that UK courts can suspend UK statutes if it violates EU law
49
what did the Treaty of Rome establish
came under the European communities Act 1872
| EU law takes precedent
50
give an example of a case in the US relating to EU law
United States of America v Nolan (2015)
51
what was the United state v Nolan case about
claim against US government under trade unions and relations act 1992
52
what did Nolan argue in the case against the gov
more consultation with workers representatives before redundancies were made
53
what did the gov argue in the case against Nolan
secretary of state had acted ultra vires under the European communities act 1972
54
what was the outcome of the US v Nolan case
went in Nolans favour
55
what is the European convention on human rights
sets out rights of citizens and is incorporated in the human rights act 1998
56
why is the human rights act not superior to parliamentary statute
based on europes European convention of human rights and not eu law
57
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
58
what is the HRA said to have
persuasive authority
59
derogation
country is exempt from observing a law/regulation it'd previously agreed to abide by
stated in article 15 of HRA
60
give an example of a supreme court case involving human rights act
R. Tigere v secretary of state for business, innovation and skills (2015)
61
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
62
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
63
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
64
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
65
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
66
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
67
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
68
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
69
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 `
70
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
71
why can the supreme court not strike down acts of parliament
no codified constitution with set of 'fundamental laws'
72
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
73
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
74
who is said have quasi legislative power
supreme court
| they can establish precedent through common law
75
what committee did the supreme court replace
appellate
76
whats the difference between power and authority
power - ability to do
| authority- the right to do
77
who identified the three sources of authority
german sociologist Max Weber
78
what were the three sources of authority weber identified
traditional authority
charismatic authority
legal rational authority
79
what is traditional authority
based on established traditions and customs
80
what is charismatic authority
based on characteristics of leaders
81
what is legal rational authority
granted by formal process e.g election
82
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
83
what factors have enhanced the supreme court's authority
more independent appointment process
| separation of power (physically aswell)
84
how was the ECHR established
Council of Europe
| NOT European union
85
what is the council of Europe
founded in 1949 by Britain and 9 other states
86
what would have to ECHR if we leave the EU
wouldn't remove our obligations under ECHR
87
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
88
what would Brexit involve (impact on the supreme court)
withdraw treaty of rome, no eu law precedent
89
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
90
how many judicial review applications were there in 1998
4,500 applicants (no. tripled in a decade)
91
judicial review applications increase 2000-2013
```
2000= 4,300
2013= 15,700
```
92
why is it important for judges to be independent
form an effective check
| citizens need to feel rights are protected
93
Who can seek judicial review
Anyone with standing
| Has to be affected by the issue at hand
94
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
95
How have sections 3 and 4 of the human rights act impacted judicial review
Bought rights contained in European convention
96
How has section 6 of HRA impacted judicial review
Unlawful for public authority to act in way incompatible with convention rights
97
How has devolution impacted judicial review
Devolution statutes require devolved legislatures and executive to respect rights in ECHR
98
What are the main difference between civil and criminal courts
Civil=disputes between private citizens/ citizens+states
| Criminal= accused of breaking criminal law
99
What is a tribunal
Deals with disputes between individuals+ specific state agencies.
100
What is the European court of justice
Highest EU court, ensure EU law is equally applied across all member states
Sets precedent
101
What is the European court of human rights
Upholds European convention on human rights
| Should be “taken into account” by Supreme Court
102
What is the main function performed by the lower courts in England and Wales
Uphold+apply law
| Hand out sentencing
103
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”
104
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%
105
In 2004 what percentage of judges were women (criticisms of the judiciary)
16%
| Only 9% senior judges
106
How many members of the court of appeal comes from an ethnic minority
1 (compared to 8% of population)
107
What does section 64 of the constitutional reform act say about the judicial appointments commission
‘Must have regard to the need to encourage diversity’
108
What strategy was launched by the lord chancellor
2006- aimed to increase the number of women+ethnic minority students
109
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)
110
How are members of the JAC chosen
12 through open competition
| 3 nominated by Judge’s council
111
what is good about the JAC
Appoint based on merit
Fair, neutral independent body
Supposed to eliminate ‘old boys club’
112
How are appointments to the Supreme Court made
Supreme Court selection commission
113
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’
114
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
115
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)
116
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
117
What is the selection process for senior judges an important factor in determining
Independent judiciary
118
What Act has improved the independence of the judiciary
Constitutional reform act 2005
119
What did the constitutional reform act 2005 fail to do to the judiciary
Diversity
| Still overwhelming white, male + privately educated
120
What two things have given UK judges more opportunity to challenge actions of the government
Human Rights Act (1998) and membership of the EU
121
What are the main grounds for judicial review
Illegality
Procedural impropriety (unfairness)
Irrational
122
Why is judicial review weaker in the UK
uncodified constitution
| Parliament in sovereign and laws aren’t higher
123
How has section 6 of the HRA impacted judicial review
Unlawful for public authority to act in way which incompatible with HRA
124
How has devolution impacted judicial review
They have to respect HRA as well
