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The Legal System > Legal Personnel > Flashcards

Legal Personnel Flashcards

1
Q

what is a lawyer?

A

the generic name given to members of the legal profession

2 types of lawyer; barrister and solicitor

legal executives are an emerging branch of the legal profession, they do similar work to solicitors

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2
Q

how have the two professions been merging over the years?

A

both provide legal advice

both can represent clients in court due to the Courts and Legals Services Act 1990 and the Access to Justice Act 1999 that allows solicitors with the relevant qualifications to exercise the same rights of audience as a barrister (around 6500 solicitors have these rights)

direct access in civil cases allow clients to now go straight to barristers without needing to consult a solicitor first

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3
Q

there is direct access in civil cases but not in….

A

criminal and family cases

both require clients to contact a solicitor first

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4
Q

advantages of having two different professions

A

more objectivity in cases as the client has access to two opinions and advice from one side can be assessed and checked by the other

allows each profession to specialise in certain skills, these distinct skills then complement eachother very well. for example, barristers tend to be experts in advocacy

reduces workload, there would be significantly more work for one lawyer to do if they were to handle the whole case, it’s therefore more efficient to have two different professions dealing with different tasks

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5
Q

disadvantages of having two different professions

A

expensive - higher costs because client has to pay both a solicitor and a barrister instead of just having one lawyer who handles everything

duplication of work - seems illogical that the person who prepares the case has to then give it to someone else to present thus duplicating the work as the barrister learns to case already prepared by the solicitor, would be easier to have one person handling the whole thing because they can learn the details of the case better

less continuity as case is not worked from start to finish by the same person, merging the two professions means that one lawyer can work the whole case

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6
Q

what is a barrister?

A

type of lawyer

usually works in a courtroom

experts in advocacy (representing clients in court and presenting the case)

tend to specialise in one field of law

give detailed advice on legal issues (known as counsel’s opinion)

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7
Q

roles of barristers

A
  • advocacy - represent clients in court
  • present cases in court and have full rights of audience which means they can present cases in any court in England and Wales
  • give detailed advice on legal issues, this is called counsels opinion
  • tend to specialise in particular areas of law
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8
Q

facts and figures for barristers

A

around 16,000 practising barristers in England and Wales

13,000 self employed

3000 employed by CPS, local gov, etc

over 60% work in London

36% are women

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9
Q

what are all barristers collectively referred to?

A

collectively referred to as ‘the Bar’

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10
Q

qualification (education and training) of barristers

A

1) ACADEMIC STAGE
2) VOCATIONAL STAGE
3) PROFESSIONAL STAGE

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11
Q

explain the academic stage for barristers

A

provides students with legal knowledge…..

• complete a qualifying law degree which includes 7 core topics such as contract law and criminal law

OR

• undertake a non law degree and then complete a 1 year conversion course called the GDL (Graduate Diploma in Law) and continue as a law graduate

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12
Q

explain the vocational stage for barristers

A

provides specialised skills…

  • BPTC (Bar Professional Training Course) which lasts a year and leads to Bar Examinations, involves practical training with emphasis on advocacy, interviewing, negotiation and case preparation skills
  • must enter an Inn of Court in London and complete 12 qualifying sessions that include dining or attend a residential training course
  • successful students are called to the Bar - now officially qualified as a barrister but need to complete a pupillage to be able to practise
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13
Q

explain the professional stage for barristers

A

practical work experience and training….

  • complete a pupillage, applied for via the Pupillage Gateway - involves shadowing a qualified barrister for 12 months or two different barristers for 6 months each
  • done in a set of chambers or in an authorised training organisation such as the Government Legal Service
  • able to appear in court and conduct cases after 6 months
  • paid a small salary
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14
Q

x4 points on evaluation of training for barristers

A
  • GDL
  • choice has to be made too early
  • pupillages
  • expensive
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15
Q

barristers training evaluation

GDL

A

not sufficient enough training as it only lasts a year which is not long enough to gain suitable legal knowledge and a good grounding in law

doesn’t seem enough especially since the normal law course lasts 3 years

also quite expensive to undertake on top of doing a non law degree, costs and extra £9000 - £11,000 (sometimes more)

HOWEVER, the GDL does provide an opportunity for candidates who decide late to go into law without having to do another degree thus making training for them more affordable in the long run and less time consuming as it’s only a year

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16
Q

barristers training evaluation

CHOICE IS MADE TOO EARLY

A

the choice to become a barrister has to be made too early, during the degree stage students should have a strong idea on what route to take

puts immense pressure on students to choose a route even though they may not have had enough experience to know what profession they’d prefer

training is very expensive so if students take a certain route and decide they want to do a different one then the whole process would not have been worth it

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17
Q

barristers training evaluation

PUPILLAGES

A

pupillages are very scarce and difficult to find which prevents many from completing their training

in 2014/15 there were only around 400 available but over 1500 students already taking the BPTC

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18
Q

barristers training evaluation

EXPENSIVE

A

training to become a barrister is extremely expensive

large debts come from university degrees which cost over £9000 a year plus interest from loans

the BPTC costs between £5000 and £19,000

these costs can be very off putting especially since there is no guarantee of getting a pupillage to complete training

only those with sufficient financial backing can afford to go through training which only adds to the lack of diversity in the profession

HOWEVER, there are bursaries and scholarships available to help with costs

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19
Q

x4 suggestions for reform

A

more joint training

more pupillages

better funding

more opportunities to do qualifying work while studying

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20
Q

barristers work

A
  • governed by the General Council of the Bar
  • full rights of audience - can present case in all courts in England and Wales
  • usually self employed and work from a set is changes with a clerk (difficult to find tenancy in chambers)
  • some are employed in the CPS, local government, etc
  • give detailed advice on an area in law, tend to specialise in one area
  • paperwork - write opinions on cases, draft documents
  • cab rank rule - accept all cases as long as it’s on an area of law they deal with and they’re free to take it on
  • usually work on instruction from a solicitor but there is now direct access in civil cases - clients can go straight to a barrister
  • can apply to become a Queen’s Counsel after 10 years in the profession - deal with more complex cases and get a higher salary
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21
Q

regulation of barristers

A
  • Bar Standards Board - an independent body regulating the profession of barristers
  • BSB purpose is to “promote and maintain excellence in the quality of legal services provided by barristers”
  • BSB set entry standards to the profession and set a code of conduct which all barristers should comply with
  • BSB will investigate any alleged breach of code of conduct and can discipline any barrister who is in breach — serious matters will be referred to the Disciplinary Tribunal
  • clients complain in the first instance to Head of Chambers using the complaints procedure
  • Legal Ombudsman was established under the Legal Services Act 2007 and resolves complaints about barristers, must be independent and impartial
  • LO can ask barrister to apologise, give back documents, correct wrongdoings, refund or reduce legal fees and pay compensation of up to £50,000
  • clients cannot sue for breach in contract as there is no contract between client and barrister except in direct access cases BUT can sue did negligence regarding written advice and negligent advocacy
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22
Q

what is a solicitor?

A

type of lawyer

usually works from behind a desk in an office

give general and initial advice to the public

prepares cases and often instruct barristers

liaison between clients and barristers

deal with a greater variety of work but many now specialise in one field of law, especially in larger firms

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23
Q

how many solicitors are there in England and Wales?

A

over 130,000

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24
Q

who are solicitors controlled by?

A

the Law Society

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25
Q

solicitors qualifications (education and training)

A

graduate route is made up of three stages:

1) academic stage
2) vocational stage
3) professional stage

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26
Q

explain the academic stage for solicitors

A

provides students with legal knowledge…..

• complete a qualifying law degree which includes 7 core topics such as contract law and criminal law

OR

• undertake a non law degree and then complete a 1 year conversion course called the GDL (Graduate Diploma in Law) and continue as a law graduate

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27
Q

explain the vocational stage for solicitors

A

provides specialised skills…

  • complete LPC (Legal Practise Course) which consists of 2 stages
  • stage 1: core practice areas/skills such as client interviewing and negotiating
  • stage 2: made up of 3 vocational electives
  • Professional Skills Course lasts 20 days and builds on skills learnt in the LPC
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28
Q

explain the professional stage for solicitors

A

practical work experience and training…

• training contract — lasts 2 years, involves working as a trainee solicitor in a firm or other organisation such as the CPS, paid a small salary, supervised by a solicitor and must gain experience in 3 areas of law

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29
Q

what happens after the professional stage for solicitors?

A

after completing the training contract the solicitor is deemed qualified and can seek admission to the roll of solicitors

must register with the SRA (Solicitors Regulation Authority)

continue to have education courses to keep knowledge up to date

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30
Q

what is the CILEx route for solicitors?

A

available to non graduates to qualify as solicitors but takes longer than the graduate route

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31
Q

what does the SRA plan to do?

A

plans to launch the Solicitors Qualification Exam in 2020

meaning the GDL and LPC will no longer be required to qualify and will likely be phased out

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32
Q

x4 evaluation points for solicitors training

A

expensive

training contracts

law degree

GDL

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33
Q

solicitors training evaluation

EXPENSIVE

A

training costs a lot of money, a degree alone is over £9000 a year including debts from student loans which can reach £50,000

the LPC can be around another £14,000

risky and possibly not worth the expense of seeing as there are few jobs available and many do not even complete the training

there is no guarantee of a job at the end of expensive training, newly qualified solicitors have to compete against legal executives and paralegals for jobs too

HOWEVER, there are bursaries and sponsorships available to help deal with the financial aspect

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34
Q

solicitors training evaluation

TRAINING CONTRACTS

A

like pupillages for barristers, there are a limited number of training contracts available

more people do the LPC then there are training contracts which prevents many people from completing the training which is a major set back considering how expensive training is

furthermore, the minimum salary for training contracts have been abolished meaning that some trainees are earning a very low wage with no hope of paying off their debt any time soon

most training contracts are offered to graduates from Oxbridge and Russell Group universities (79% of law trainees come from RG universities), seems to be elitist and acts as a barrier to those not from such privileged backgrounds

35
Q

solicitors training evaluation

LAW DEGREE

A

law degree is arguably worth the expenses

seeing as it provides a wide range of opportunities for work in many other careers and provides useful skills that can be applied to other fields of work

so even if the training isn’t completed the law degree itself is still useful and not a waste of money

36
Q

solicitors training evaluation

GDL

A

the GDL is criticised for being insufficient grounding in law as it only last year and does not equip the student with enough legal knowledge

this makes it harder for those with the GDL to access good contracts and jobs

also, as it’s only a year there is a very heavy workload which can be off putting and very stressful for anyone wanting to train to become a solicitor

HOWEVER, the challenging workload can be good preparation for the work expected when qualified and entering the real profession

37
Q

solicitors work

A

the majority of solicitors work in private practice in a law firm

others may work for the CPS, a local authority, government department or in a legal department for a large business such as the BBC

may be general practitioners handling a variety of work such as……
• meeting with clients
• offering legal advice (usually general and initial)
• drafting legal documents
• negotiating (on behalf of clients)
• advocacy (all solicitors have rights of audience in lower courts and can apply for higher court rights qualifications)

may specialise in one particular field of law such as…
• matrimonial and family matters (e.g. divorce or child custody)
• negligence (e.g. personal injury claims)
• wills and probate

38
Q

regulation of solicitors

A

Law Society = governing body of solicitors

Solicitors Regulation Authority = regulates the profession

complaint should initially be made to the solicitor or firm themselves — each solicitor has a procedure for dealing with complaints as well as a designated complaint handler

next step is to contact the Legal Ombudsman if complaint is about poor service, the bill, etc or if the initial complaint was not handled sufficiently

the Legal Services Act 2007 set up the Legal Ombudsman and the Office for Legal Complaints

the Legal Ombudsman a certain powers...
• to ask the solicitor to apologise
• get back any documents
• correct any wrong doings 
• refund or reduce legal fees
• pay compensation of up to £50,000

solicitors must comply with the principles of the code of conduct, if they breach these principles then the client may complain to the SRA who can investigate misconduct and require solicitors to explain their actions

Solicitors Disciplinary Tribunal will look at evidence submitted by the SRA, they deal with serious professional misconduct cases and can
• fine or reprimand a solicitor
• suspend a solicitor from the roll — cannot practise for a certain period of time (for serious cases)
• strike off a solicitor from the roll — banned from practising (for very serious cases)

39
Q

legal executives

A

fee earning, qualified lawyers who have passed the CILEx (Chartered Institute of Legal Executive) Professional Qualification in Law

often do the same work as solicitors and specialise in a specific legal area such as litigation or conveyancing

eligible to become partners in law firms

40
Q

qualifications (education and training) of legal executives

A

do not need a degree but should have at least 4 GCSEs at grade C or above

complete CILEx training programme — stage 1 and 2

undertake qualifying employment

41
Q

explain the CILEx training programme

A

CILEx training programme

  • STAGE 1 = Level 3 Professional Diploma in Law and Practice — equivalent to A Levels, gives good grounding in core legal topics, usually takes 2 years
  • STAGE 2 = Level 6 Professional Higher Diploma in Law and Practice — equivalent to degree level, students choose areas of law to study and learn the law and practise for those areas in more detail, develop professional skills

if both stages are successfully completed, students become a graduate member of CILEx

if student already has a degree or GDL, they can take the CILEx Graduate Fast Track Diploma instead of above routes

42
Q

explain qualifying employment for legal executives

A

minimum of 3 years

carry out legal work under supervision of a solicitor, barrister, etc

may be employed in a legal practice, private company or within government

can be carried out during studies but final year must be done after Level 6 Diploma

can then apply to become a Fellow of CILEx

43
Q

changes in the legal system

A

alternative business structures

technology

globalisation

diversity

44
Q

alternative business structures

A

Legal Services Act 2007 introduced ABSs

allows anyone with a license to operate from the Legal Services Board to open an ABS

others can now own legal service providers, it’s not just restricted to lawyers

ABSs may include both solicitors and barristers as well as lawyers and non-lawyers

e.g. commercial firm like the Cooperative Society has a license

45
Q

advantages of ABSs

A
  • one stop legal practices — clients have direct access to a range of specialist in the same business rather than having to employ several services which makes it cheaper and more efficient
  • gives clients more choice between ABSs and traditional firms
  • gives choices to solicitors and barristers on how to practice law and further their career, they can either work in a traditional firm or an ABS
  • free market competition may reduce fees, beneficial to clients
46
Q

disadvantages of ABSs

A
  • loss of an independent legal profession to protect individual liberties
  • the best lawyers become even more concentrated in a small number of firms
  • potential conflict-of-interest
  • difficult to regulate the professional conduct of lawyers and non lawyers
47
Q

technology

A

technological developments have resulted in…..

  • case decisions and rulings accessible online — no need to rely solely on printed reports which is more effective and concise
  • reduced paperwork — due to online claim forms and court computers
  • legal documents can be processed and search electronically — saves time and reduces fees for clients but produces less income for lawyers
  • ODR — allows disputes to be resolved online without lawyers
  • online courts — do not need lawyers, may be available in 2020
48
Q

globalisation

A

technological developments have allowed for globalisation….

  • easier for law firms to operate internationally, many firms now have offices in many countries
  • mass communication encourages a more global approach and has led to an increase in the need for international law alongside national law
  • however it’s hard to develop the best talent in distant locations and set the same rights in new markets
  • barristers chambers may open abroad but there will be little affect on the criminal bar and small solicitor firms
49
Q

diversity

A

GENDER
• 60% of law degrees are awarded to women
• 1/3 of barristers and 50% of solicitors are female
• few women in higher levels of the profession — only 15% of QCs are female and 22% of partners solicitors firms
• 2010 report suggested this is due to lack of flexible working hours, profession is still male dominated and women prefer to be salaried barristers or in-house lawyers

RACE
• 13% of the Bar are BME
• 15% of solicitors are BME
• 7% of QCs are BME
• they are well represented considering their proportion in the population
• increased number of QCs are BME

OTHER
• more than 50% of solicitors are from the first generation in their family to attend university
• 70% of barristers have parents educated to degree level

50
Q

is it easier to train and work as a solicitor than as a barrister?

YES

A
  • vocational stage in training is more straightforward and practical for trainee solicitors, only need to complete the LPC which covers a wide range of topics including practical areas such as business management, whereas barristers need to do the BPTC as well as joining an Inn of Court and completing 12 sessions of dining before being called to the Bar
  • LPC is marginally cheaper than the BPTC and is offered in a greater number of places around the country, many universities are now including it in the four year degree course, this makes it more accessible and easier to undertake BUT there are more bursaries available for trainee barristers from the Inns to assist training
  • not overburdened with additional costs that barristers have to cover such as costs of wigs, gowns and dining on top of the cost of training, these costs may prevent someone from entering the barrister profession
  • more training contracts available than pupillages, gives more opportunity to trainee solicitors and makes it easier to complete training, there are also greater ranges of training that can be undertaken for example in a firm a trainee solicitor must complete work in three areas of practice
  • minimum pay per annum for training contract is £16,000 whereas it is only £12,000 for pupillages, makes it easier for solicitors to cover the cost of living
  • greater range of jobs available, easier to find employment after training, more secure employment as the majority of positions are salaried whereas most barristers are self-employed which may be risky if they do not have the financial backing to cope with this
  • solicitors can now undertake the same work as a barrister including obtaining the same rights of audience
51
Q

is it easier to train and work as a solicitor than as a barrister?

NO

A
  • no difference in academic stage of training both need a qualifying law degree or GDL
  • more bursaries and financial aid available for trainee barristers from Inns of Court to assist them with the vocational stage, less available for solicitors
52
Q

the judiciary

A

judges as a group are referred to as the judiciary

there are many different levels of judges, divided into superior (high court and above) and inferior judges (those of the lower courts)

main roles; make decisions, apply the law, be fair and unbiased

SUPERIOR JUDGES — Justices of the Supreme Court, Lord and Lady Justices of Appeal, High Court Judges

INFERIOR JUDGES — Circuit Judges, District Judges, Recorders

53
Q

Justices of the Supreme Court

A

superior judges

hold the highest judicial office

deal with cases of the greatest public and constitutional importance

also deal with appeals on points of law of general public importance

54
Q

Lord and Lady Justices of Appeal

A

superior judges

sit in the Court of Appeal which has two divisions; civil and criminal

deal with appeals in both civil and criminal cases

55
Q

High Court Judges

A

superior judges

sit in the High Court and the Crown Court

CC = deal with major criminal cases like murder

HC = deals with all major civil cases

hear some first instant cases and some appeals

56
Q

Circuit Judges

A

inferior judges

sit in the Crown Court for criminal cases and in the County Court for civil cases

57
Q

Recorders

A

inferior judges

part time judges who sit in the Crown Court and the County Court

but mainly work in the Crown Court

appointed for five years and then reappointed

58
Q

District Judges

A

inferior judges

sit in the Magistrates Court and County Court

MC = hear criminal cases in larger cities instead of magistrates

CC = hear small claims cases of up to £10,000

59
Q

qualifications of judiciary

A

set out in the Courts and Legal Services Act 1990

amended by the Tribunals, Courts and Enforcement Act 2007

qualifications are based on legal qualifications and legal experience

Supreme Court Justices = 15 years legal experience OR held high judicial office for 2 years

Lord and Lady Justices of Appeal = 7 years legal experience OR existing High Court judge

High Court Judges = 7 years legal experience OR 2 years as a circuit judge

Circuit Judges = 7 years legal experience OR 3 years as a recorder or district judge

Recorders = 7 years experience + 5 years appointment

District Judges = 5 years legal experience OR a CILEx Fellow + 5 years post qualification experience

60
Q

selection of judiciary

A
  • selected by the JAC (Judicial Appointments Committee) — which was established by the Constitutional Reform Act 2005 and is made up of a panel of judges, lawyers and lay people
  • advertisement — vacancies for judges are advertised widely online, in newspapers, etc to aim to diversify the judiciary
  • apply — candidates apply and provide references
  • 5 qualities JAC will look for…
  1. intellectual capacity
  2. personal qualities like integrity and objectivity
  3. ability to understand and deal fairly
  4. authority and good communication
  5. efficiency
  • selection is made on merit, only those of good character and the 5 qualities will be successful
  • a criminal conviction will result in the candidate not being considered for the appointment e.g. in one case, 7 points on a driving license prevented someone’s appointment
  • shortlist — online qualifying test is used to shortlist candidates
  • selection day — successful candidates invited to selection day which consists of an interview assessing attitude and aptitude (may include role-play exercise)
  • selection — JAC selects those for appointment and recommends them to the Lord Chancellor (who used to carry out selection but is very limited now due to judicial independence)
  • appointment — made by the Queen, keeps judicial selection and appointment separate from the government
61
Q

selection of judiciary

CRIME + COURTS ACT 2013

A
  • Lord Chief Justice selects inferior judges instead of Lord Chancellor
  • if two candidates of equal merit are up for appointment to the Supreme Court it allows one to be chosen to improve diversity
62
Q

training of judiciary

A

carried out by the Judicial College

training focuses on….
• knowledge of substantive law, evidence and procedure
• development of judicial skills
• social context within which judging occurs

induction program — new judges have to do an induction program which usually consist of 3 to 5 day residential course

new low-level judges assigned an experienced judge to act as a mentor

promotions — when judges are promoted to a higher level they attend induction courses for that level

continuing education — mixture of residential and non-residential courses supplemented by e-learning, updates knowledge on any new legislation such as the 1998 Human Rights Act (compulsory for inferior judges but voluntarily for superior judges)

human awareness — also receive training in human awareness which makes judges more able to understand other peoples viewpoints and circumstances eg understanding pressures from high unemployment, housing shortages and drink/drug problems

63
Q

retirement and removal of judiciary

A

judges must retire at 70

SENIOR JUDGES
• security of tenure — cannot be dismissed by Lord Chancellor or the government, this right originates from the Act of Settlement 1701
• can only be removed by the monarch following a petition by the Houses of Parliament
• can be asked to resign

INFERIOR JUDGES
• can be removed by Lord Chancellor or Lord Chief Justice for incapacity on misbehaviour
• must comply with set procedures in the Constitutional Reform Act 2005

RECORDERS
• appointment for 5 years and then reappointed unless there is good reason not to

64
Q

role of judges

A

role depends on the court they sit in

65
Q

role of judges

COURT OF FIRST INSTANCE

A
  • ensure hearing is fair
  • preside over court
  • decide questions of law
  • single judge makes decisions

CIVIL COURTS
• decide outcome of the dispute and award
• small claims — help parties put their case
• case manager — decide track and keep parties to time limits
• hold preliminary hearings
• may run court office

CRIMINAL COURTS
• MC = decide verdict, sentence, preliminary matters like bail
• CC = sum up for jury, sentence if appropriate

66
Q

role of judges

APPEAL COURTS

A

review hearing at first instance - decide whether law was correctly applies, etc

leave to appeal - decide whether it should be granted

can change decision made or revise the order/award

decide points of law in important cases

clarify or amend the law - eg Pepper v Hart

judicial review - under the HRA 1998

3 or more judges make decisions together

67
Q

x4 evaluation points for the judiciary

A

unrepresentative

elitist

women and ethnic minorities

independent

68
Q

judiciary evaluation

UNREPRESENTATIVE

A

judges tend to be older, upper-class, white males and are therefore unrepresentative of the society they serve

maybe out of touch with the people they deal with or able to empathise with them, could lead to bias and unfairness in the criminal justice system

HOWEVER, changes have been made to the selection and training processes to address this criticism

Tribunals, Courts and Enforcement Act 2007 — allows Fellows of CILEx to become eligible for judicial appointment, enables a wider range of people to become judges which should have an impact on the cross-section of the judiciary

Crime and Courts Act 2013 — if two candidates of equal merit are up for appointment to the SC, one can be chosen to improve diversity

69
Q

evaluation of judiciary

ELITIST

A

the judiciary is sometimes criticised for being elitist

80% of judges have been educated at private schools and have then gone on to acquire degrees from Oxford or Cambridge, this is especially true of superior judges

gives criticism that the judiciary is only accessible for those with private education backgrounds from wealthy families

70
Q

evaluation of judiciary

WOMEN AND ETHNIC MINORITIES

A

there has been a significant increase in the number of female judges and judges of BME backgrounds particularly at lower levels

judiciary is becoming more diverse and representative

in 2016, 25% of circuit judges were female, there were 3 BME High Court judges and 17 circuit judges

in 2017 Lady Hale was appointed as the first female President of the Supreme Court (the highest judge in the land)

71
Q

evaluation of judiciary

INDEPENDENT

A

independent which means it is free from political influence and not subject to government

for example, under the Act of Settlement 1701 senior judges cannot be removed by the government, only by the monarch following a petition by the Houses of Parliament

free to do their job without fear of potential repercussions or government control, allows the judiciary to provide crucial checks and balances on the executive and legislature

72
Q

separation of powers

explain the theory

A

Montesquieu First proposed the theory of separation of powers…

  • there are three primary functions of state
  • the three functions must be kept separate to safeguard the liberty of citizens

(some countries such as the US have a written constitution that embodies this theory)

73
Q

separation of powers

what are the 3 branches of government?

A
  • legislature — makes laws (parliament)
  • executive — puts laws into effect and administers the nations affairs (government = PM, cabinet + government departments)
  • judiciary — interprets and enforces the law (judges)
74
Q

separation of powers

importance of separation

A

without separate bodies exercising separate powers, too much power lies with too few people which can lead to tyranny and dictatorship

the separate bodies also provide checks and balances on each other to prevent this

75
Q

separation of powers

overlap between the 3 branches of government in the UK

A

judges used to sit in the House of Lords (which is part of the legislature) until the Supreme Court was formed under the Constitutional Reform Act 2005 to separate the judiciary and legislature

existing overlap between executive and legislature — ministers form the government (executive) but also sit in Parliament (legislature) and are active in the law making process

overlap between judiciary and other bodies — Lord Chancellor used to sit in the Lords and was head of the judiciary but now….

  • no longer a judge or head of judiciary
  • not central in judicial appointments (the JAC has taken this role)
  • not automatically speaker in the Lords
  • remains as head of Ministry of Justice
  • Crime and Courts Act 2013 — Lord Chief Justice now appoints inferior judges, not LC

(reduces political influence and potential bias)

76
Q

independence of judiciary

A

allows the judiciary to carry out checks and balances on the government while being free from political influence

important in protecting the liberty of individuals from abuse of power by the executive

otherwise an opponent to the government hold be imprisoned without reasonable cause

77
Q

independence of the judiciary

x5 features

A

security of tenure

immunity from suit

executive

legislature

case independence

78
Q

security of tenure

A

under Act of Settlement 1701, senior judges cannot be removed by the government (only by the monarch following a petition by the Houses of Parliament)

inferior judges can only be dismissed for incapacity or misbehaviour

judges are free from outside political influence and not subject to government control

79
Q

immunity from suit

A

judges cannot be sued for actions taken or decisions made in the course of judicial duties

free to do their jobs without fear of potential legal repercussions

80
Q

executive independence

A

s.3 of Constitutional Reform Act 2005 — government ministers have a legal duty to uphold independence of the judiciary and cannot influence judicial decisions

JAC keeps judiciary and executive separate because they appoint judges openly and transparently, the Lord Chancellor is not longer central in the appointment process and no longer sits as a judge

Crime and Courts Act 2013 reinforces independence as Lord Chancellor no longer appoints inferior judges, the Lord Chief Justice does

81
Q

legislature independence

A

full time judges cannot be members of the Commons

judges have to apply laws even if they disagree due to parliamentary sovereignty

supreme court was created to separate the two bodies, SC Justices are no longer allowed to be members of the Lords

both the executive and legislature must accept judicial law making, decisions from the SC and quashed decisions in judicial review

82
Q

case independence

A

judges must be unbiased and unconnected with the case

the public have confidence in the legal system and that judges should decide cases solely in evidence presented in court, should not be influenced politically or by the media

Pinochet case - one of the judges was a director of Amnesty International who were trying to extradite Pinochet, so decision made was set aside

83
Q

evaluating judicial independence

A

an independent judiciary is important in protecting the liberty of the individual from abuse of power by the executive

otherwise, an opponent of the government could be imprisoned without reasonable cause

SUPREME COURT — created to deal with the overlap between the judiciary and executive, supreme court justices are no longer allowed to be members of the lords

reform of the role of lord chancellor

crime and courts act 2013

public confidence in the system

legislative and executive accept judicial law making

The Legal System (4 decks)

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