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UK Politics and Government > The Judiciary > Flashcards

The Judiciary Flashcards

1
Q

Highest court

A

Supreme Court

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2
Q

Two divisions of the court of appeal

A

Criminal division and Civil division

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3
Q

3 divisions of the Hight Court of Justice

A
  • Queens brach divison
  • family division
  • Chancery division
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4
Q

Senior courts

A

Crown, High court of Justice, Court of Appeal, Supreme Court.

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4
Q

Inferior Courts

A

magistrates and County

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5
Q

Judicial indépendance

A

Notion that judges are free from government interference.
Maintained by an independent appointment committee. salaries are set by an independent body rather than the Govt.
Also is the notion that judges are neutrally objective and opinions are swayed by personal opinion or popular pressure.

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5
Q

Separation of Powers

A

The Judiciary is separate both physically and in terms of personnel from parliament and the government. This is critical to the upholding of the rule of law.

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6
Q
A
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7
Q
A
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8
Q

Ultra Vires

A

Everyone is subject to the rule of Law.

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9
Q

Judicial review

A

A court process where the Judges review the legality of a decision or action made by a public body including a government.

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10
Q

Arguments that the Judiciary is to powerful

A

Judges are unelected and are challenging to be removed.
The Human rights act 1998 means that Judges are often politicised figures because of this and they may have an impact on the legislative process.

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11
Q

Arguments that the Judiciary is not excessively powerful.

A

Judges need to be independent of politicians to be impartial and fair to everyone.
judges only interpret laws and rate their compatibility to the ECHR.
Judges are experienced legal professionals. They are better situated to make legal decisions
The courts ensure that those in power stick to the rules themselves and it isn’t abusing it.

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12
Q

Appointment procedure of Jobs

A

Appointments are based on metit and experience.
Politicians have no real say in appointment.
Done through the JAC (Judicial appoinemtn commission).
JAC is an open and competitive process
Before the Lord Chancellor had a role in appoinement now they dont.
Many have citisized composition of judiciary especially in the highest level.

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13
Q

Evidence of a lack of diversity among judges

A

only one in six are female. Lack of BAME ethnic group representation. Fewer judges with a lack of barristial background. Domination of Oxbridge education.

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14
Q
A
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15
Q

Does the lack of diversity matter? YES

A
  • Judges do not reflect modern Britain society
  • It could be hard to understand the socioeconomic/ background of a case
  • Little improvement over the last decade.
  • Reduces trust in judiciary
  • More input from democratically elected judges will increase diversity.
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15
Q

Does the lack of diversity matter? NO

A
  • Unlike MP;s judges do not need to be representatives of the people but legal officials. Diversity is greater further down the line. The public would rather have trust in the best judges rather than the most diverse ones.
    An attempt to diversify would lead to a greater politicisation of the jury.
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16
Q

Supreme Court

A

Set up in 2009 after the 2005 constitutional reform act. Must have served for 2 years as a barrister and 15 years to be a Barrister. Judges enjoy permanent security until compulsory retirement age. Free of political pressure.

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17
Q

Main Roles

A

This is the final UK court of appeal. Enforces the ECHR in the UK.

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17
Q

UKSC and Europe

A

Under the HR act 1998 the UKSC has the power to decide whether an action or body is in breach of the ECHR and if a Law is in breach then they can issue a ‘declaration of impartiality’. This kills the bill.
Before Brexit the SC had to decide the compatibility with British Law and EU law.

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17
Q

Declarations of impartiality

A

Such delegations are rare but one was issued in 2018 finding that the government discriminated against gay people when they banned same sex couples entering into civil partnership.

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18
Q

Appointment procedure

A

Non political, independent and based on Merit alone. Vacancies are filled by a special select commission.
The selection commission is made up of the president and deputy.
The commission consults with senior judges to put forward names.
The Lord Chancellor can accept or Reject the nomination but cannot put forward their own candidate.

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19
Q

Miller V Secretary of State for Exiting the EU.

A

The government didn’t put a vote to parliament on triggering article 50. It questioned should the devolved assemblies be consulted on Brexit.
Conclusion- Parliament must be allowed to vote on article 50. Devolved assemblies need not be consulted on Article 50. In part victory and part defeat for the Govt.
Not a politicised decision only a constitutional one.

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20
The Charlie Guard Case
Key features: Were the parents of Charlie Guard allowed to take him abroad for treatment. The Removal was opposed by Both Great Ormond street hospital and Charlies independent legal guardian who both argued that it was not in his best interest. The case was about the legality of efforts as well as the legality of the followed procedures. The case found that Charles guardians were not allowed to take him abroad. He died shortly afterwards when his life support was removed. The case reaffirmed the principles that parents do not have the say on their Childs care.
21
Commissioner of Police of the Metropolis V DSD and Another 2018
Key features: Two victims of serial raoist John Worboys successfully won case against the MET police for not taking allegations seriously at the time. They won substantial allegation. this was a human Rights case. Outcome: The UKSC decided that the Victims Human Rights had been breached. If a police force conducts an investigation into a major crime that fails in a serious way it could be liable to a human rights action brought by the victim.
22
Miller V The Prime Minister The prorogation of parliament 2019
Context: In august 2019 New PM Boris Johnson sought to suspend Parliament for a record 5 weeks. This was achieved through Royal prerogative and not a vote in parliament. Many MP's felt that this gave parliament too little time to scrutinise Brexit legislation. Result: The government was defeated and the SC rules unanimously that prorogation in these curcumstances was unlawful. The SC overulled the appeals court and decided that the Courts did have the power to rule upon the use of the Royal Prerogative. The case represented a victory for the principle of constitutional sovereignty. The ruling had little impact on Brexit result as BJ called an election.
23
Impact on Government, legislature and the making of policy by the UKSC
The UKSC acts as a significant check and balance on government and parliament in regard to both legislation and executive actions. Under the HRA 1998 all government bills must include a statement saying that in the ministers view the bull is compatible or incompatible and either way if the Minister would like to continue. Sometimes as was seen with the 2019 the R V Miller, the judiciary can enter politics. Parliament can ignore the verdict of the ECHR as in 2005 the govt ignored the denying all prisoners the vote bill unlawful. Sometimes the UKSC comes comes close to overturning key aspects of govt policy but this has never been done.
24
What are the main differences between civil & criminal courts? What are tribunals?
Civil courts- between private citezens and listens and the states criminal courts are cases where people are accused of breaking the law tribunals- smaller courts focussing on specific areas
25
What does it mean to say that the Supreme Court is the final court of appeal in the UK?
there is no higher court to bring a case to in the UK this is thusly binding on lower courts
26
What is the European Court of Justice? What is its relationship with the Supreme Court?
Highest court in the EU and is the highest court for EU countries
27
What is the European Court of Human Rights? What is its relationship with the UK Supreme Court?
court to hear cases referring to ECHR the UK can be taken to the ECHR. The HRA brought the ECHR into UK law and hence the UK judicial statues can be used to exercise the law
28
How do senior judges in the Court of Appeal and Supreme Court ‘make law’ through their interpretation of statutes? What does ‘stare decisis’ mean?
Interpret the law litteral rule- standard practice of taking the meaning of the law at face value Golden rule- can see a more logical phrasing Stare Decisis- 'to stand by that which is decided' aka to follow previous legal judgements
28
Why might judges be asked to chair public inquiries?
Such as the Levinson enquiry- NEWS international Judgest provide independent invetigation
28
What is judicial review?
review the actions of public bodies to ensure they are sanctioned by the law
28
Traditionally, what are the main grounds for judicial review?
- legality- institutions not working within the law -procedural impropriety- dishonouring legitimate expectations - irrationality- not logical law
28
Who can seek judicial review?
those who are affected or have personal interest in the decisions pg can have standing
28
Why is judicial review weaker in the UK than in countries that have codified constitutions?
because parliament is sovereign judges cannot review law and hence cannot revoke laws can only declare a bill 'incompatible'
28
How did our entry into the European Union impact judicial review?
dissaplied the merchant ships shipping act
28
How has Section 6 of the HRA impacted judicial review? What is meant by ‘proportionality’?
'declaration of incombatability' - doesn't strike down the law
28
How have Sections 3 & 4 of the Human Rights Act (1998) impacted judicial review?
this brought the EHCR into law hence the UK judicial system can be used to enforce the ECHR as well
28
What is judicial independence and why is it important?
the principle that judges should be free from political influence so they are free to apply the law
28
How has devolution impacted judicial review?
can rule that acts by devolved governments are legally invalid
29
How and why did the Constitutional Reform Act (2005) reform the position of Lord Chancellor? What impact has this had on the independence of the judiciary?
Lord Chancellor (Shamaba Mamood) on cabiet, spealer of the HOL, chief master of the judiciary
29
How did the creation of the UK Supreme Court impact judicial independence?
the highest court used to be the HOL which led judges or law lords, into protecting the law while in a political position
30
How were judges appointed before the Constitutional Reform Act (2005)?
they would be be tapped on their shoulder by the Lord Chancellor
31
How did the Constitutional Reform Act (2005) change the appointments process? How has this affected judicial independence?
The Judicial Appointments Commission advises and interviews postitions Lord Chancellor can accept or reject the nominations to which they usually accept
32
How did the Crime and Courts Act (2013) further amend judicial appointments?
high court apponintments send to lord chief justice
33
How does training and professionalism play a role in judicial independence?
judges have to be barrister for 10 years before they can be judges
34
What is ‘tenure’? Can judges be removed? How do these rules protect judicial independence?
Tenure is given to all judges. Only removed in case of serious misconduct It protects the independence of judges as they can hence freely criticise the government this excludes a retirment of judges
35
What legal protections do judges enjoy?
legal protection such was from deformation
36
How do ‘sub judice’ rules protect judicial independence? What is meant by ‘contempt of court’?
'Under Judgement' media cannot publish info that could prejudice a jury contempt of court- legal court
37
Are there any limits on what MPs and peers can say about ongoing court cases, or the decisions of judges?
MP's have parliamentary privilege but tend not to comment
38
How secure are judges’ salaries? Who sets them and how are they funded? What impact does this have on judicial independence?
judges are paid a significant salirty which cannot be changed these are paid out of a consolidated fund which isnt subject to abstention by government SC justice are £215,000
39
What is judicial neutrality and why is it important?
the principle that our judges should be free from political influence so they can apply the law feeling free from its consequences
40
How does the training and experience of senior judges encourage neutrality?
judges have substantial experience and training as they are former barristers
41
How are the legal decisions made by judges different to the political decisions made by MPs?
MP's vote and decide on action based on many factors judges have to explain legal reasoning
42
What political restrictions are placed upon judges?
cannot stand for election to parliament cannot support a political party
43
How and why do rules prevent judges from being a “judge in their own cause”?
judges should not preside over a case where they have personal matters at stake they can reduce themselves
44
Why have recent constitutional reforms raised the profile of senior judges? Does this have an effect on judicial neutrality?
creation of a Supreme Court more power to this branch of the judiciary by being televised constantly, justices are also on display
45
Why did some newspapers question the neutrality of the Supreme Court ahead of its decision in R (Miller) v Secretary of State for Exiting the European Union?
many had previous pro EU position the question was less legal and more moral could have led to views and questions
46
Why did some in the media argue that it was impossible for the Supreme Court to be completely neutral when answering difficult constitutional questions?
because personal biases could easily enter the argument lack of legal grounds to drawn on so they use moral ones
47
How diverse is the UK Supreme Court?
only one woman on the first court \ was all white in 2017 OLD
48
Why is arguable that, given the difficulty of complete neutrality, a lack of diversity within the judiciary is a significant problem?
when discussing issues with a gender split the lack of female voices was felt
49
How has the behaviour of judges changed in recent decades? Why has this led to more conflict between the judiciary & executive?
with more power this is more legal challenge to the actions of the executive rather than there poducts Miller V. Secretary of State
50
Why do supporters of an assertive judiciary see the rise in requests for judicial review as positive?
more scrutiny of the executive branch from an unbiased non political but objective legal perspective
51
Why do some critics, like many ministers, have concerns over the growth of judicial review?
threat of judicial review lead to the government working within the law
52
How have recent constitutional reforms led to greater conflict between the judiciary & executive?
David Cameron was critical of the more scrutiny and conflict. This was highlighted during Brexit
53
Growing concern over the increasing power of the judiciary
challenge to elected representatives who are sovereign ECHR is outside the UK Parliament is sovereign
54
Why is it arguable that concerns about parliamentary sovereignty are overstated?
firstly parliament created the supreme court because parliament is unlikely to pass bills so outside of the law parliament is sovereign could just give themselves more power verse few statements of incombatabily where the govt surpasses the SC
55
What is judicial activism, and why is it controversial?
judges making political decisions
56
Why does the vague language of the ECHR arguably encourage judicial activism?
these vague statements of principle encourage value based rulings
57
Why has the Human Rights Act (1998) made so many more matters ‘justiciable’? Why is this controversial?
This made the ECHR onto the statue. statements of incompatibility this is because of higher laws
58
How is the matter of ‘proportionality’ different to the more traditional grounds for judicial review? Why do some people find the judicial review of ‘proportionality’ to be so problematic?
for judges to see whether public bodies have struck the right of the individual and the wider public interests
59
How does the judiciary’s law-making role pre-date the Human Rights Act?
declaring common law making case law settling legal disputes
60
What does it mean to say that judges cannot be ‘proactive’?
have to wait for a case to be Brough

UK Politics and Government (13 decks)

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