To what extent is the UK judiciary too powerful?

Question 1

Too Poweful

The Human Rights Act

Answer 1

• Skewed the constitutional balance between parliament and the judiciary in favour of judges.
• Bestows unprecedented powers - quasi-legislative powers under which unelected judges can effectively alter the law and second guess parliament.
• HRA has semi-entrenched status = judges can issue a ‘declaration of incompatability’ - requiring parliament to revise any legislation it doesn’t comply with.
• Too closely involved in making decisions best left with the elected and accountable MPs.

Question 2

Too powerful

Impact of Europe

Answer 2

• Courts can enforce a wide range of EU legislation as EU laws are binding on the UK.
• Rulings made by our judges undermine British Govt - made clear by the factortame case of 1991 which rammed home the point that EU law takes precedent over UK law.
• Questionable upon Brexit - the courts no longer has to obey the ECHR = could lead to erosion of rights from the govt.

Question 3

Too powerful

Judicial review

Answer 3

• Extensive and vigorous use constitutes a direct challenge to the govt when unelected and unaccountable judges uphold a citizen’s claim that a public body acted unlawfully.
• Questions the extent before judicial review trespasses on the proper function of govt and legislature in a democracy.

Question 4

Too powerful

Judicial activism

Answer 4

Judges make rulings based on what they think the law is ought to say, rather than what it actuallly does - reached unprecedented levels, frustrating the govt’s wishes such as:
- Refusal to repatriate the Afghanisatan hijackers that arrived by diverting a flight to Stansted.
- Ruling certain types of control orders as unlawful.
- Undermining Parli’s attempt to set minimum sentences for certain crimes.
- Introducing privacy laws ‘by the back door’.
- 2010 = decided that freezing the assessts of suspected terriorists were unlawful.

Question 5

Too powerful

Growing independence of the judiciary

Answer 5

• Constitutional Reform Act 2005 emphasised greater separation of powers.
• Removed the Lord Chancellor as HOJ, Supreme Court and the JAC = strengthens its independence and it’s now seen as a more assertive judiciary (challenges govt more).
• Kihmur guidelines (1950s) forbade judges from participating about policy matteers = no longer the case.
• Lord Phillips strongly criticised the wider use of mandatory sentences (independent but not neutral).
• Judges should still bow to Parli’s will.

Question 6

Not Powerful

Limited powers comapred to other judiciaries

Answer 6

• Parli sov - judiciary cannot initate judicial reviews or declare a law unconstitutional.
• Govt can overrule the judiciary through an Act of Parliament.
• Belmarsh 2004 = courts ruled that the release of terror suspects w/o was unlawful.
• Compared to 2006 US Supreme Court = shut down Bush’s military tribunals to try detainees at Guantamno Bay. When congress passed a law recreating these tribunals, the SC shut it down too.

Question 7

Not powerful

Judges act responsibly

Answer 7

• Judges are required to interpret the law to some extent - done carefully in public interest.
• Lord Bingham argued that judges wouldn’t pass decision which would have the effect of making law in areas to legislative activity or beyond their experience.
• Lord Nevberger argued that parli sov is and should be the cornerstone of our constitutional settlement.

Question 8

Not powerful

Checks and Balances

Answer 8

• Exercises a key role in protecting individual rights.
• Following the Belmarsh case, Blair pushed for a 90 day detention without trial and the 2008 Counter-Terrorism Bill allowed for a 42 day period = neither won Parli support, suggesting the judiciary was correct in stopping it.
• In the row over privacy laws, the judges are the best at making legal decisions. PM Theresa May criticised the judiciary for preventing the deportation of 177 foreign criminals for their ‘right to a family’. J entitled their right to remain.
• Accepted that govt min power needs to be ‘restrained, controlled by the judiciary’.

Question 9

Not powerful

Problems of the law

Answer 9

• Most serious clashes are over interpretation of EU Law.
• Particularly Article 8 (family) - when courts refused deportation orders of foreign criminals (Mohammed Ibrahim and Learco Chindamo), they were merely enforcing a Charter adopted by the UK Parliament.
• Lord Dyson in 2014: ‘If Parli wishes to change the common law, it can do so. But, despite some exceptions…Parliament rarely shows any appetite for changing the Common Law.’

Question 10

Not powerful

Judges aren’t powerful

Answer 10

• Huge experience, unbiased and a head only focus on enforcing the law fairly - doesn’t need to consider electoral popularity of their decisions.
• Sentencing policy, e.g decided by experience and evaluating each case.
• new leg in 2012 imposed a raft of new sentencing tarrifs - Turner QC said a very blunt investment was used via deterrent sentences which shown by research doesn’t work.
• Criticisms come from the people who disagree with their decisions (politicans) - must be thankful for the independence and strength of our judiciary as our rights are safely and consistently protected by them than career politicans.