Relations between the branches - unit 2

Question 1

What is the judiciary?

Answer 1

One of the three branches of government, alongside the legislature and executive

It is a system of courts that interprets and applies the law for the state - empowered to decide legal disputes and adjudicate on the meaning of the law

Question 2

Separation of powers doctrine

Answer 2

Requires the principal institutions of state - executive, legislature and judiciary - should be clearly divided in order to safeguard citizens liberties and guard against tyranny

Question 3

How was the separation of powers doctrine breached in relation to the British Judiciary?

Answer 3

• 12 ‘lords of appeal in Ordinary’ law lords (HOL) expected to be neutral crossbenchers but were free to take part in the business of the lords
• Lord Chancellor cross all powers - chairman of meetings in HOL (legis) cabinet minister (direction and management of UK legal system)(exec) and head of judiciary

Question 4

How did Constitutional reform act fixed these issues?

Answer 4

• Independence of Supreme Court - 12 senior judges known as the Justices of the Supreme Court, head is the president
• Position of Lord Chancellor - no longer head of judiciary, now lord chief justice secretary - president of the courts of England and Wales (Scot and NI have their own chief judges) no longer speaker

Reaffirmed the principle that a SC Justice can only be removed by a vote by both houses in Parliament, and only for misconduct, not decisions

Question 5

What was finally codified in law?

Answer 5

Independence of judiciary and Supreme Court Lord Chancellor tasked of guaranteeing and maintaining the independence of Supreme Court and rest of the judiciary from political or public pressure

Question 6

Court of Appeal, Civil and Criminal Divisions

Answer 6

These court hear appeals from lower courts, either questioning the outcome of a case or clarifying a point of law

Question 7

The High Court

Answer 7

A collection of courts that deal with civil law disputes (not criminal law) such as family law, negligence, reviews of government decisions and sometimes constitutional issues

Question 8

The Supreme Court (established in 2009)

Answer 8

The highest court in the land and only hears appeals from the lower courts - deals with the interpretation of the law

Cannot consider a case unless a relevant order has been made in a lower court - they rule on what law means when there is a dispute - cases raised are those that affect the nation

Question 9

main reasons a court may hear a case?

Answer 9

• May be an important judicial review - human right at stake
• May have implications for other citizens and bodies - may create an important precedent
• Clear up a dispute between lower court interpretations of Parliamentary law
• Attracted a lot of public interest

Question 10

The Miller case, 2017
Miller v Secretary of State for Exiting the EU - Judicial review

Answer 10

Requested a judicial review of whether the Secretary of State for exiting the EU (David Davis) has the power to trigger Article 50 which would start the process of the UK departure

Legal argument was that Parliament was sovereign stands about the prerogative power to bring the UK out of the EU - gov argued they did have this power

High Court ruled they need parl approval before triggering - because the departure would affect the rights of UK citizens

Question 11

Nicklinson v Ministry of Justice (2014)

Answer 11

• Question of the right to die
  2005 severe stroke paralysed from neck down living nightmare insisted he wanted to die but unable to w.o assistance and it breached Suicide Act 1961 applied to make it legal - incompatible Article 8 with the present legal regime

High Court refused both declarations - necessity should not be allowed at common law - SC dismissed with no declaration of incompatibility issued

Question 12

Smith and others v Ministry of Defence 2013

Answer 12

Series of claims brought by families of troops killed whilst in duty in Iraq - failed to provide suitably armoured vehicles and suitable equipment - argued ECHR convention ceases to apply when troops are sent off to bases no longer in the jurisdiction of the UK

Court reasoned that it must extend to troops and they carry out the protection of the law as they are out on duty by virtue of the fact that they must remain under the authority and control of the UK throughout their service

Question 13

What do judges do?

Answer 13

• Ensure the rule of law is applied - all citizens should be treated equally under law. Trials and hearings conducted to ensure all parties gain a fair hearing
• Interpretation of the law - SC determines the precise meaning of statute in when it’s not clear such as deputants
• Conducting judicial review and establish legal precedent
• Hearing cases - only ECHR can reverse judgements, judgements need a majority, 11 sit on a key case

Question 14

Ultra Vires

Answer 14

‘Beyond the powers’ - an action that is taken without legal authority when it requires it

Question 15

Conducting Judicial Reviews

Answer 15

• To ensure the gov does not overstep its powers
• To assert the rights of citizens

After HRA 1998 - court could review actions by gov and public bodies that might contravene ECHR

2013, hit a peak of 15,000
Because of this, coalition restricted the cases that could apply for legal aid when seeking judicial review and raised court costs
2014 - 4062 - fell by 44%

Question 16

Matt Hancock PPE judicial review

Answer 16

Transparency breach over how vast quantity of tax property money spent
Health Secretary
Unlawful - failed to publish covid contracts witha 30 day person
By the Good Law Project - set of legal challenges related to government procure meant for PPE

Question 17

Prorogation Ruling 2019

Answer 17

• Unlawful verdict
• Jacob Rees Mogg called the court’s decision - ‘a consitutional coup’
• No.10 tried to prorogue Parliament - PM insisted he wanted to outline gov policies in a monarch speech on 14th Oct, but accused he was trying to stop MPs scrutinising his Brexit plans to suspension was far longer than necessary

Lady Hale insisted the case was ‘not about when and on what terms’ - the Uk left the EU, it was the decision to suspend Parliament

Question 18

2012 Leveson Inquiry

Answer 18

2012 - Leveson Inquiry - reviewed the general culture and ethics of the British media and make the recommendations to replace the existing Press Complaints Commission which would have to be recognised through the state through new laws. Chaired Lord Justice Leveson

Question 19

Sentencing

Answer 19

• In the past senior judges used to have a free hand in deciding that sentences to give out - restrictions in homicide cases where a life sentence was mandatory and some maximum sentences determined by Parliament
• Recently, however, minimum sentences for certain offences and for repeat offenders - restricted flexibility of judges and some are concerned that this is an example of politicians taking away control from judges and reducing independence from politics

Question 20

Police, Crime, Sentencing and Courts Act 2022

Answer 20

• Before bill, police powers - could impose specific measures on the routes of marches, if they wanted to restrict in ‘serious public disorder’
• Police chiefs will be able to to put more conditions on static protests such as those organised by Extinction Rebellion where roads and bridges occupied
• Right to protest and express yourself enshrined in danger
• CEO of Amnesty International UK Sasha Dishmunkh said ‘Policing Bill is part of a hugely widespread attack on human rights’

Legislation proposes higher maximum penalties introduced for child cruelty offences
Domestic abuse victims given more time to report incidents
Mandatory life sentences for anyone convicted for killing an emergency worker

Question 21

Judicial Independence

Answer 21

• Ensuring Rule of Law applies equally to all
• Strictly impartial and non political
  2 principles that apply to the judiciary: Independence and Neutrality
• Part of the UK constitution
• Can only interpret the law and not determine what the law should be - separation of powers

Question 22

Why is it important that judges are independent

Answer 22

• A danger the government will exceed its power with a legal justification - tyranny without effective government checks - problematic - infringement of rights
• Citizens need to feel c cases will be based on the basis of justice and rule of law - prevents discrimination
• Important that judges are not influenced by short term changes in public opinion, reflected by politicians - following a terrorist atrocity - may be curbs for individual liberties - may hurt the case of human rights in the long term
• In practice, judges are specially selected by the gov to ensure decisions are friendly to that gov. SO independence neutrality to prevent collision between judiciary and gov

Question 23

Judicial neutrality

Answer 23

The principle that the judges should not be influenced by their personal political bias and should remain outside of party politics

Question 24

Judicial neutrality in the UK

Answer 24

• Restrictions on group membership - no serving justice may join a political party or certain other groups that may cause a conflict of interest
• Peer review - below SC, any judicial opinion can be appealed and be reviewed by a higher court to comply with judicial neutrality - if it concerns ECHR aspect, goes to the court
• Training and experience - all senior judges must have enjoyed a lengthy career as a lawyer and be highly trained to the accustom that cases must be judges on the strict basis of the law

Question 25

Does Judges look like Britain?

Answer 25

• Educational background of judges - over 90% of judges went to Oxford or Camebridge - over 75% went private, 8% court judges, NO SC judges BAME as of 1st April 2020, comparing to 13% of the UK population
• 2 SC judges female - Lady Hale and Lady Simmler
• Social diversity limited, reflects educational system 20,30,40 years ago, 92.6% white, 7.4% BAME court judges

Question 26

Judicial Independence and Neutrality is under threat

Answer 26

• Independence under threat from Executive - minister’s willingness to criticize judges - Minister Kwasi Kwarteng spoke about ‘biased judges’ following prorogation ruling in 2019 with the Judicial Review and Courts Bill 2021 - seeking to curb their power
• Some Tory politicians think senior judiciary have a liberal bias who favours rights over state security, order and gov power - as Home Sec, Theresa May routinely criticised Judges Liberal Interpretation of the ECHR within the HRA, arguing it was stopping her from deporting terrorists such as Abu Qatada in 2013, due to their ‘right to a family life’
• Can’t be neutral if unrepresentative towards society
  2/12 SC women, over 90% went to oxford or camebridge, over 75% went to private, judges compared to 13% of the UK population, no BAME
• Judicial Activism - judges have abandoned neutrality by becoming high profile and outspoken - 2013 Lord Neuberger attacked May for criticising the judges for what she percieved was a failure to deport foreign criminals - calling her comments ‘inappropriate, unhelpful and wrong’.

Question 27

Judicial Independence and Neutrality is not under threat

Answer 27

• Security of tenure, pay and rule of sub judice
• Constitutional Reform Act 2005 removed most threats to Independence - removed the law lords from the House of Lords, reformed position of Lord Chancellor so no longer breached separation of powers and established politically independent Judicial Appointments Commission
• Training and experience and public trust in judges - have to have held at least 2 years at judicial office or as a high level lawyer for 15 years - opinion poll by Ipsos Mori - more than 4/5 of Britons trust them to tell the truth, comparing to 1/7 for politicians
• Equal treatment of both Labour and Conservatives governments and restrictions on political statements - the ‘Kilmur rules’ forbids judges in participating in political policy debates and Labour gov have had their decisions struck down too, such as Law lords decision to release 9 terror suspects being held without trial in Belmarsh Case 2009

Question 28

Parliament in Omnicompetent

Answer 28

It is able to do whatever it wants, to pass any law and to expect to have that law implemented and enforced
No matter how bad a judge thinks the law is, they cannot strike it down, can only pass opinion and recommend change

Question 29

What must the judiciary take into account?

Answer 29

The wishes of Parliament when interpreting law
When determining the real meaning of statute law, judges will look back at original proceedings and establish what Parliament intended

Question 30

2010 regarding the assets of terror suspects

Answer 30

SC ruled in 2010 that gov did not have the power to freeze the assets of terrorist suspects without consulting Parliament first - Brown was enraged
Parliament passed a new law which allowed this - the Terrorist Asset Freezing Act in 2010 - the will of Parliament prevailed and the SC could do nothing

Question 31

The Safety of Rwanda (Asylum and Immigration) Bill

Answer 31

Designed to stop objects to original Rwanda policy

SC in Nov 2023 said gov Rwanda policy ‘unlawful’ - felt that refugees would be removed from Rwanda to their original countries, where they may be subject to torture

This was an emergency bill which could declare Rwanda to be safe and to prevent further court challenges under UK domestic law

Question 32

The Importance of HRA 1998

Answer 32

Incorporated all 18 articles of the ECHR into UK law making it binding on all public bodies - if an act is passed to contravene the ECHR - since Parl is sovereign, the judiciary must declare a declaration of incompatability - this is rare - only 3 between 2010-2015.

Since HRA came into force on 2 Oct 2000, only 27 declarations of incompatability have been made, of which 19 have become final

Question 33

The Belmarsh case 2004

Answer 33

Law Lords found Section 23 of the Anti-Terrorism, Crime and Security Act 2001 was incompatible with Article 5 of the ECHR (right to liberty)

Challenged the power of the Home Sec to indefinitely detain non-UK citizens without a trial if they were considered a risk to national security - 9 suspected terror for several years in Belmarsh prison - ‘Habeus corpus’ breached

Question 34

Who has the power: the Executive or the Judiciary

Answer 34

Up to the 1970s, judges not expected to challenge the authority of the gov - same social and political background usually found in favour of the state - but the UK judiciary now no longer sees itself as subordinate to the executive

• Growth of judicial review
• The rise of liberal ideology in the UK from 1960s onwards - ‘rights culture’
• Appointment of liberal minded senior judges since 1960s
• Passage of HRA 1998 - have judges a codified statement of human rights used to protect citizens against state power
• Constitutional Act 2005 improved independence of judiciary in general

Question 35

The claims of the government to establishing justice and rights

Answer 35

• Executive elected and accountable - judges are not
• Executive usually has a clear mandate to run the country and to protect its citizens
• Executive can respond to public opinion
• Executive has an overarching responsibility to protect citizens even if it means setting aside individual rights in interest of national security

Question 36

The claims of judiciary to establishing justice and rights

Answer 36

• Judiciary do not allow political considerations to interfere with protection of rights
• Qualified lawyers, rational bearings to questions of law and justice
• Expected to be immune from outside, populist influences
• Because not elected, judges can take a long term view, whilst politicians have to consider their short term re-election prospects

Question 37

The Miller Case 2016

Answer 37

Gina Miller, a private citizen requested a review of whether the Sec of State for exiting the EU (David Davis) had the prerogative power to trigger Article 50 of the EU, which would start the process of the UK departure - Parl is sovereign and stands above these powers

Gov argued they did

High Court said gov did not have the power and sov of Parl should be excercised - departure from EU would affect the rights of UK citizens
SC upheld the ruling, they need to parl approval to trigger it

Question 38

Civil rights and civil liberties

Answer 38

Civil rights - rights under the state

Civil liberties - rights for being human

Question 39

PJS vs News Group Newspapers 2016

Answer 39

Unnamed celebrity sought to prevent media publishing details of private life - extent of the right to privacy v freedom of expression

SC ruled celeb privacy shold be upheld and took precedence over freedom of the press

Question 40

What happens if the ECHR breached

Answer 40

Case is taken to the European Court of Human Rights in Strasbourg - this court is made up of judges from different European countries who examine the case- applies to 47 countries

All UK courts must apply these intepretations - Parl can call upon Parl sov and defy
Judgements from this are morally and politically binding in the UK, but not constitutionally or legally binding

Question 41

2013: Should Prisoners have the rights to vote in the UK

Answer 41

Peter Chester and George McGeosh, 2 prisoner tried to sidestep GB legislation over prisoner voting rights with Article 3 - The ECHR in Stratsbourg having in the past ruling voting banned for those serving a sentence

Brit gov vowed inmates will not be given voting rights under law - PM told HOC - ‘no one should be in any doubt - prisoners are not getting the vote under this government’

Question 42

Electoral dictatorship and two constitutional principles

Answer 42

Electoral dictatorship - the relationship where gov dominates Parl usually due to a large majority, and therefore has few limits on its power

1 - Parl is sov
2 - Gov has electoral mandate to carry out manifesto commitments

Usually solved from the majority gov enjoys

Power of the Lords has been brought to control from
Parliament Act 1911 - no control over financial arrangements
Parliament Act 1949 - can only delay power for a year
Salisbury Convention 1940s - can’t block leg contained in winning gov last election manifesto

Question 43

How does Parliament hold the Executive to account

Answer 43

• If no electoral mandate/manifesto promise, Commons must exercise a veto by voting down legislation - May (33 altogether) - Brexit - 3 defeats - indicative votes - voted on their proposals for Brexit, 9 different, no winners, Parl taking control of timetable
• Amending legislation - Rwanda Bill - 4 amendments back, banning smoking in cars that carry children - Children and Families Bill 2014
• Calling gov and ministers to account in formal scrutiny sessions - Amber Rudd, Windrush scandal 2018
• Dismissal of government: a vote of no confidence - 1979 Callaghan lost one

Question 44

Features of Judicial independence

Answer 44

• Judicial Pay - the salary of judges decided by an independent body - The Senior Salaries Review Body - cannot be cut and strict rules on what expenses can be claimed - ensures no political manipulation of the pay of judges
• Security of tenure - judges cannot be removed from office on the grounds of the kinds of decisions they make - can only be removed if they are shown to be corrupt from personal conduct
• The rule of sub justice - contempt of court for any servant of the government to attempt to interfere with the result of a court case or even comment on it in public or in Parliament - to prevent political pressure
• Independent appointment since 2005 - gov and SC largely independent

Question 45

The Miller Case 2016 constitutional realities

Answer 45

• Judiciary can determine limits of gov’s prerogative powers
• Rule of law superior to political considerations
• Parl is sov in matters - decision to leave EU affects rights so must seek approval
• Referendums are not legally binding - outcome confirmed by Parl, not gov