Lecture 8 - The Judiciary, the State and Law-making Flashcards
Separation of Powers
- The principle that the citizenry are kept safe from the abuse of power. The trias politica principle.
Legal Definition of Separation of Powers:
- The doctrine under which the legislative, executive and judicial branches of government are not to infringe upon each other’s constitutionally vested powers.
Certain independent vested ‘Powers’ are held in government within:
- The Legislative Branch - Parliament.
- The Executive Branch - Prime Minister, Cabinet Government Departments and Civil Service.
- The Judicial Branch - Judges in Courts.
UK does not have a formal written constitution.
Why do powers require separation?
- To ensure independence and avoid concentration of power.
- To clarify roles and duties.
- To avoid abuses of power.
History of the Separation of Powers:
Over time, power shifted from kings and queens to ordinary people, changing how countries were ruled. Thinkers like Aristotle, Calvin, Hobbes, and Locke influenced this change, leading to a system where leaders started to answer to the people instead of the other way around.
Montesquieu and the modern Tripartite system:
“Exercise three powers, that of enacting laws, that of executing the public resolutions, and of trying the causes of individuals.”
Weak Separation of Powers or Collaborative Practice?
- In the UK the Legislature is dominated by the Executive.
- Legislature might receive considerable amount of pressure from Executive.
- Even though it is Parliament’s job to legislate, in reality the government mainly controls it (Hobbs and Hamerton, 2014)
Weak Separation of Powers or Collaborative Practice? (2)
- In the UK, judges and Parliament both help make laws—judges do this by making decisions in court cases and explaining what laws mean. Even though Parliament has had the main power since the 1600s, being part of the EU from the 1970s changed things a bit, and some EU rules still apply today, especially around trade and human rights.
Griffith, 1991
- Judges work to maintain the existing social order as members of the Establishment.
- They decide what is in the public interest, but usually this interest is based on dominant ideologies.
- ‘Conservative, normative ideology.’ Judiciary lacks diversity, Judges drawn from same, narrow backgrounds.
Judicial creativity and activism.
Judges are mainly meant to apply the law, sometimes their decisions can help create new laws or change existing ones. This happens when they use judicial creativity (making bold decisions based on current views or public opinion) or when they deal with new issues not covered by existing laws, setting legal examples (precedents) that can later become official laws—like how upskirting was first dealt with by judges before being made into a specific law in 2018.
Ministry of Justice
- 9 May, 2007, the new MoJ started its work.
- Senior Judges expressed important concerns.
- Important issues of principle.
Magistrates’ Court
- All criminal cases will commence here.
- A high percentage of cases are also completed here.
- Police -> formal charge -> first hearing here.
- Summary offences heard here, e.g. petty theft.
- Magistrates’ Courts have limited sentencing powers.
- Highest - 6 months imprisonment.
Crown Courts
- Established by the Courts Act 1971.
- Indictable offences tried here.
- They use juries.
- Class 1 offences, most serious - treason and murder.
- Class 2 offences - e.g. sexual offences.
Class 3 - all other offences - kidnapping, burglary, etc…
Judicial Separation and the European Convention on Human Rights (1950)
ECHR (1950) approved in UK law via the Human Rights Act (1998):
Sixteen basic rights, including:
- Right to life and security
- Prohibition of torture
- The right to a fair trial
- Prohibition of discrimination
Does the HRA 1998 confer more power on the Judiciary?
- HRA been used as a way to judge other acts passed by Parliament.
- Cannot directly overturn an Act of Parliament but can issue a ‘declaration of incompatibility’ - arguably puts pressure on gov to make changes to legislation.
Case Study 1: Anti-Terrorism, Crime and Security Act (2001)
The ATCSA (2001) allowed indefinite detention without
trial for foreign nationals who are suspected to pose a
risk because of suspected association with international
terrorism
- Resulted in people being detained for indefinite periods. Those in detention not allowed to see evidence against them
- Judiciary argued this breached their human rights,
especially liberty, equality, and discrimination
- This activism resulted in the law being changed from
indefinite to ‘time-limited’ and could include house arrest
