UK Judiciary Flashcards
Define the rule of law
- The key idea of the rule of law is that the law should apply equally to all.
- This means that nobody is ‘above the law’; it apples to ministers and public officials as well as every member of society.
- There must also be equality before the law, whereby all citizens are treated alike.
- The law must be applied in all circumstances
- Legal redress is available through the courts if people’s rights have been infringed.
Outline 2 functions of Judges
1) Judges interpret and apply the law. This usually involves statutes that are laid down by Parliament. Judges are able to exercise a measure of discretion in the way that they interpret these statute laws.
2) Judges also decide sentencing in criminal cases. Judges have traditionally had a free hand in deciding what sentences to hand out. This role has been reduced in recent years with the wider use of mandatory sentences
Outline 2 civil liberties
- Right to a fair trial is a crucial civil liberty in liberal democracies such as the UK. This protects people from being arbitrarily punished by authorities.
- Freedom of speech ensures that people have the right to discuss issues freely without constraints or fear that they will be punished for doing so.
Define judicial independence
- Judicial independence is based on the separation of powers and ensures that all judges within the Judiciary remain independent from any political pressure or influence so that they may make neutral decisions and not be worried about the decisions they make having political backlash
- This is ensured by Judge’s secured salary, security of tenure, and an independent Judicial Appointment Committee which ensures no Judge feels like they owe anybody
Explain judicial review and its importance
• Judicial review is the process whereby the Judiciary acts as a check on the legislative and the executive by reviewing the legality of government actions and legislation.
o The Judiciary has the ability to label certain legislation that is not within the confines of the law to be declared incompatible (declaration of incompatibility).
o Judicial Review is to ensure that public authorities do not act in excess of their powers and this explanation is supported in the following words of Sedley J “the purpose of Judicial Review is to ensure that government is conducted within the Law”.
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Explain how Judiciary can use review
The political grounds for judicial review are numerous including:
o acting ultra vires, when the authority lacks the power to take the action that it did;
o procedural impropriety, when the public authority used an unfair process when making the decision;
o irrationality, when the decision is so unreasonable that it is deemed to be unlawful (Wednesbury Principle);
o when a public body has breached one of the terms of the HRA or when Parliamentary law conflicts with EU Law.
Why is Judicial review important
Judicial review is important as it helps to protect civil liberties. E.g. the Belmarsh ruling in which the judges ruled that the Government was in breach of HRA by holding terrorist suspects without charge for 90 days.
• However, Judicial review is not that important due to the principle of Parliamentary Sovereignty:
o As there is no codified constitution - not as powerful
o This was highlighted by the Judiciary’s declaration of incompatibility of the control orders which the Blair government introduced
o However, due to Parliaments ability to create or change any law they like, they re-worded and re-introduced TPIM’s
Why are appointments independent
• Judges are no longer appointed by the PM and Chancellor:
o JAC – “merit and merit alone” – judges appointed because of their ability rather from any political standpoint.
o However, The Chancellor still has the formal role of appointing senior judges and can reject the first candidate proposed to them by the JAC, questioning the influence they still hold over the nomination process
o PM and Chancellor still remain on appointment board
How is judiciary structured to ensure independence?
• Judiciary is structured to ensure independence:
o Security of tenure
o Independent salary
o Security from media criticism
Why is Judiciary not independent
In practice, these features don’t always work:
o The 2010-2015 Parliament introduced a freeze on judicial salaries and adverse changes to judicial payments – salaries aren’t therefore protected
o In 2010, Theresa May criticized the refusal to deport two terrorist suspects
o More recently, Judges were criticized and attacked in the media for their decision that the government had the right to trigger article 50
What requirements make Judges neutral
• Judges have requirements which ensure they are neutral
o Senior judges undergo extensive legal training prior to being appointed. This training enables judges to focus entirely on the legal considerations of the case and make judgments based on evidence, and not their own opinions.
o They have usually served as barristers or junior judges for between 20 and 30 years
o Senior judges must explain their rulings in reference to points of law that have led them to their decisions. This increases accountability and therefore neutrality. Judges are accountable to the (JAC) and parliamentary committees.
How are Judges restricted to ensure neutrality
• Judges are restricted to ensure neutrality
o Judges, although allowed to vote, are not allowed to engage in political activity and cannot endorse or become a member of a political party
o They also cannot express support for any pressure groups or protests
o The ‘Kilmuir rules’ issued in the 1950s forbade judges from participating in public debates about policy matters in order to preserve their neutrality. Whilst these restrictions have been relaxed since the late 1980s, the principle still stands.
Why aren’t Judges necessarily neutral
• This in practice can be questioned
o Lady Hale, member of the supreme court, gave a speech to law students in Malaysia in which she voiced a variety of possible outcomes of the case, including whether the Government was authorized to trigger Article 50. This led to controversy over whether she was making a neutral decision on the matter.
How has HRA caused conflict between exec. and leg.
o The judiciary can now act as a better check on the executive and ministers according to the protection of civil liberties
o The HRA laid down clear guidelines which ensures that the judiciary has the ability to hold the executive accountable
o The HRA has been used to override ministerial decisions:
o 2006 – ruled that the Home office was wrong to prevent addicts receiving drugs whilst in prison
o High Court ruled it was against HRA to deport 9 afghans who hijacked a plane without proceeding with their asylum claim
o SC forced May to change her rules regarding appealing being on the sex offenders register for life in 2010.
Why has increased use of judicial review caused conflict between exec. and leg.
o Huge increase in judges accepting cases where citizens claim to have been wronged by the government
o In the 1970s there were fewer than 200 judicial review cases a year, by 2013 there were more than 15,600 annually.
o This increase of judicial activism has led to an increase of participation in controversial cases
o With complex legislation, there is a wider scope for ministers to act with discretion; this wider scope also means that there are more grounds for a legal challenge on grounds of procedural impropriety or irrationality.
o E.g, Gina Miller won case in which she claimed the government were acting Ultra Vires for triggering Article 50 without consent of Parliament This was huge defeat to the government and showed a great deal of conflict between judges and the executive.
