Unit 2: Judiciary

Question 1

Rule of law being upheld (ultra vires)

Answer 1

Judiciary can uphold rule of law by declaring when the executive acts beyond its legal power/limit e.g. Michael Gove schools issue

Question 2

Rule of law being upheld (equality before the law)

Answer 2

1. Members of executive and legislative are held to account for breaches of law
2. E.g. Chris Huhne (prosecution/jailed)
3. E.g. Nigel Evans (prosecution and then later found not guilty)

Question 3

Rule of law being upheld (judicial interpretation)

Answer 3

1. judges can uphold law be ‘reading into’ laws
2. E.g. super-injunctions: an implicit right to privacy. Can also ‘disapply’ UK law if judges feel it’s incompatible with other law
3. e.g. Janah v Libya (2013)

Question 4

Rule of law being upheld (declarations of incompatibility)

Answer 4

Can be effectively upheld as the judiciary can declare an incompatibility - prompts the executive to resolve this.
e.g. Declared incompatibility between Anti-Terrorism Crime and Security Act 2001 and HRA as it only covered non-UK citizens (2004)

Question 5

Rule of law NOT being upheld (equality before the law)

Answer 5

1. Senior figures are unlikely to be held to account
2. e.g. Cameron, Nigella Lawson, judges said was in contempt of court but nothing was done about it.
3. e.g. Blair cash for honours scandal 2006, very strong evidence of this but very little consequences as he was PM

Question 6

Rule of law NOT being upheld (judicial interpretations)

Answer 6

1. super-injunctions have been circumvented through parliamentary privilege
2. e.g. Lib Dem MP naming Ryan Giggs in 2011 in the HoC. This allowed the media to write about it and there are no consequences for what is said in the HoC.

Question 7

Rule of law NOT being upheld (HRA)

Answer 7

1. Not effectively upheld
2. Parliamentary sovereignty means the HRA can be repealed at any time
3. Declarations of incompatibility can be ‘resolved’ very easily through remedial orders

Question 8

Rule of law NOT being upheld (ultra vires)

Answer 8

1. declarations hold no legal weight, can be ignored.
2. e.g. Michael Gove ignored when he was declared to be ultra vires
3. Can also be ‘resolved’ through ‘fast-track’ retrospective parliamentary approval (e.g. Theresa May 2013 immigration)

Question 9

How are judges independent? (appointment process)

Answer 9

1. BEFORE: Lord Chancellor and civil servants would scout out prospective judges and they receive a ‘tap on the shoulder’. Then suggested to the PM and appointed as law lords or appeal court judges and then to the HoL
2. NOW (post 2005 Con reform act): The position is advertised, and candidates are interviewed by the Judicial Appointments commission (JAC) These candidates are sent to the Lord Chief Justice and then final candidates are sent to the Lord Chancellor who may reject one candidate. (Supreme Court Selection Committee) is only for SC selection.

Question 10

How are judges independent? (Security)

Answer 10

1. Judges can keep their jobs until they’re 70 and can’t be fired, except under very extreme circumstances.
2. The salaries of judges are decided by the Senior Salaries Review Body, which is an independent body.

Question 11

How are judges independent? (creation of SC)

Answer 11

1. Lord Chancellor no longer selects candidates to be appointed as judges - stripped of most judicial function.
2. Completely reformed selection process for judges.

Question 12

How are judges independent? (Freedom from political criticism)

Answer 12

1. ‘sub judice’: if a case falls under this (once legal proceedings begin) then MPs and Lords can’t talk about court cases as a debate could influence outcome of legal case.
2. Should also refrain from commenting on cases/judicial decisions
   BY CONVENTION NOT STATUTE
   not upheld - e.g. Cameron/Nigella Lawson case

Question 13

How are judges neutral? (political restrictions)

Answer 13

1. Can vote, but can’t openly endorse parties/candidates/pressure groups

Question 14

How are judges neutral? (accountability/transparency)

Answer 14

Senior judges are expected to explain legal reasoning behind decisions.

Question 15

Why should judges rather than politicians be responsible for protecting civil liberties?

Answer 15

1. Judicial neutrality - uphold the law essential for serious matters of civil liberties (esp. with the lack of a codified constitution and written down rights.
2. Judges have legal training/expertise which politicians often lack - stronger guarantors of liberty, Judiciary more liberal
3. Politicians have often severely restricted civil liberties - coalition and labour in terms of anti-terror legislation and ID cards
4. Politicians are susceptible to public pressure/short term populist measures, public opinion sometimes misinformed, whilst judges can’t really be fired and don’t need to be re-elected.

Question 16

Why should politicians rather than judges be responsible for protecting civil liberties?

Answer 16

1. democratic legitimacy - people vote for politicians so can be held accountable whilst judges are only appointed.
2. Politicians protect civil liberties through statute legislation
3. Politicians have often passed pro-civil liberty legislation e.g. HRA 1998, Protection of Freedoms Act (2012), scrapping ID cards (2010)
4. Judiciary is socially unrepresentative e.g. by education/ethnicity, more so than Parliament. An unrepresentative judiciary lacks public trust, especially by communities affected by lack of civil liberties (e.g. ethnic minorities

Question 17

To what extent can judges check the power of the executive and legislative? (+ rule of law)

Answer 17

Courts are guardians of the rule of law.

+arrest and trial of Nigel Evans MP (2013) and prosecution and imprisonment of Chris Huhne (2013)

Question 18

To what extent can judges check the power of the executive and legislative? (+executive acts)

Answer 18

Judiciary can strike down executive acts which offend the HRA
+Supreme Court declared government to have acted illegally when it froze the bank accounts of suspected terrorists. (HM Treasury v Ahmed 2010)
+ECHR’s initial prevention of the deportation of Abu Qatada 2013

Question 19

To what extent can judges check the power of the executive and legislative? (+HRA)

Answer 19

Judiciary can ‘declare an incompatibility’ with the HRA/ECHR.
+Supreme court ruled provisions of the Police Act (1997) to contradict right to a private life Article 8 in 2013
+Lords declared incompatibility between Anti-Terrorism Crime and Security Act (2001) and HRA as it only covered non-UK citizens.

Question 20

To what extent can judges check the power of the executive and legislative? (+EU law)

Answer 20

Judiciary can declare UK legislation incompatible with EU law.
+Janah v Libya (2013) established that courts could ‘disapply’ statute law which conflicts with EU charter principles.
+Factortame case 1991

Question 21

To what extent can judges check the power of the executive and legislative? (-HRA)

Answer 21

Parliament can pass new legislation to circumvent judge’s ruling.

• Terrorist Asset-Freezing Act 2010 overruled HM Treasury v Ahmed 2010
• Prevention on Terrorism Act 2005 passed in direct response to Lords’ ruling on the Anti-Terrorism Crime and Security Act 2001, reinstating control orders.

Question 22

To what extent can judges check the power of the executive and legislative? (-proactiveness)

Answer 22

Judiciary cannot be proactive- must wait for cases to be brought to them

• Department of Education’s scrapping the BSF went ahead despite supreme court objection (2010)
• coalition increased cost of applying for judicial review from £60 to £235

Question 23

To what extent can judges check the power of the executive and legislative? (-ultra vires)

Answer 23

Ultra vires and declarations of incompatibility can be ignored or resolved through a ‘fast-track’ remedial order.
-After the S.C. ruled the ‘stop and search’ powers in the Terrorism Act 2000 to contravene the HRA, the govt passed a remedial order to maintain the powers if the police have ‘reasonable’ suspicious 2011.

Question 24

To what extent can judges check the power of the executive and legislative? (-sovereignty)

Answer 24

Parliament can alter the legal framework judges use.

• like how constitutional reform act (2005) made more independent etc
• make it more difficult for judges to declare incompatibilities etc due to parliamentary sovereignty.

Question 25

To what extent do judges protect individual rights and freedoms in the UK? (+rule of law)

Answer 25

they uphold the rule of law in the UK.

+Arrest, trial and conviction of Chris Huhne (2013) and the arrest and trial of Nigel Evans MP (2013)

Question 26

To what extent do judges protect individual rights and freedoms in the UK? (+HRA/ECHR)

Answer 26

Judges can issue declarations of incompatibility with the ECHR/HRA.
-Lords declared incompatibility between Anti-Terrorism Crime and Security Act 2001 and HRA as it only covered non-UK citizens (2004)

Question 27

To what extent do judges protect individual rights and freedoms in the UK? (+judicial independence)

Answer 27

Judges are not allowed to give their own political opinion or opinions on legislation passed.
-Lord Neuberger criticised the government’s use of secret courts (2013) because against everyone having a right to a free and fair trial

Question 28

To what extent do judges protect individual rights and freedoms in the UK? (+ultra vires)

Answer 28

Judiciary can say the government has acted ultra vires.
-supreme court declared government to have acted illegally when it froze the bank accounts of suspected terrorists. (HM Treasury v Ahmed 2010)

Question 29

To what extent do judges protect individual rights and freedoms in the UK? (-government)

Answer 29

Parliament/government can alter the way in which the rule of law is upheld thus breaching equality before the law.

• In 2012, the government reduced access to jury trials in a cost-cutting measure. 70,000 cases per year without juries.
• Secret courts also goes against this (Lord Neuberger criticisms of 2013)