The Judiciary Flashcards
Functions of the judiciary
- Uphold the rule of law - everyone has access to fair trial & equal under the law
- Interpret the law
Judicial independence
Judges should be free from any political influence so they a re able to apply law effectively.
Maintained via independent appointment process and tenure
What protects the independence of judiciary
- Separation of powers - CRA 2005 ( JAC & guildhall)
- Judges are appointed on merit rather than elected
- Tenure - can only be removed for serious misconduct
Example of judge getting removed for misconduct
In 1983, Judge Bruce Campbell was removed from office after he was fined £2000 for brining cases of whisky and 9,000 cigs into the country on his private yacht, evading import duties.
Separation of powers
The judiciary is separate, from parliament and the govt and don’t get involved in political debate.
Crucial to judicial independence and upholding the rule of law
Judicial impartiality
Judges are neutral / objective when it comes to making their judgements and are not swayed by personal opinion or public pressure
Ultra vires
Everyone is subject to the law, including the govt.
If govt or public bodies are deemed by courts to have exceeded their powers, their actions are declared ultra vires
Judicial review
Judges review the lawfulness or actions to ensure the executive is using its discretionary powers as parliament intended
Lack of diversity amongst judges
- Under-representation of women (2 out of 12 in SC) (25% in court of appeal)
- Lack of black,Asian,ethnic groups judges
- Domination of public schools and oxbridge background. 11/12 SC studied at oxbridge
Constitutional Reform act 2005
- Physically separated the legislative & judicial branched by removing the Law lords from HoL and establishing new SC
- Reduced the powers of the Lord Chancellor form appointments as imposed judicial independence
- Placed the judicial appointments to the JAC in order to increase the separation of powers
- Provided the creation of the SC in which 12 justices would sit
Is the SC too powerful - YES
- Judges are unelected and cannot be removed easily
- the HRA 1998 means judges get involved in political influence and often crash w politics undermining parliamentary sovereignty
- judges make decisions that can have huge impact, including over life and death (assisted dying bill)
- judicial review, judges can force govt to change policies
Why is judicial review limited in the UK
Because parliament is sovereign and we have an uncodified constitution. As Parliament is able to make and unmake laws and no one has the legal right to override Parliament
Why can’t the UK SC review Acts of Parliament
because all Acts of parliament are constitutional
What reforms has strengthened judicial review
- European Communities Act 1972 - EU laws has direct effect on the UK so didn’t need prior approval of Parliament & EU law was supreme
- HRA 1998 - brought rights contained in ECHR into UK law - upheld in the UK courts
What is a ‘declaration of incompatibility’
Any act incompatible with the laws/ human rights.
This doesn’t strike down the law as due to parliamentary sovereignty, it’s upon to Parliament to decide whether or not to address the incompatibility
The judiciary appointment process
- judges are based on merit and experiences
Politicians have NO SAY - 2006, All judges below the SC have been appointed by the JAC, before then the lord chancellor had a role in the process
How is the SC appointed
- SC selection commission (president & deputy of the SC, JAC in wales, Scotland , NI)
- Once approved the lord chancellor recommends to the PM who makes a recommendation to the queen
Lord chancellor can reject but MUST a give a valid reason.
Does a lack of diversity matter - YES
- They do not reflect modern British society
- Hard for judges to understand cultural context of some cases
-Reduces public trust in judiciary and leads to biased
Does lack of diversity matter - NO
Judges are t
