Unit 2.4 The Judiciary & Civil Liberties

Question 1

Define: Judicial review

Answer 1

A courts authority to examine and executive or legislative act and to invalidate that act if it is contrary to constitutional principles.

Question 2

Why is judicial review important?

Answer 2

Allows judges to check the powers of the government, hold them to account. This is necessary if legal power has been abused - ultra vires.

Question 3

Give examples of successful judicial reviews

Answer 3

In 2003 David Blunkett attempted to restrict benefit payments to asylum seekers which the judiciary overturned.

In December 2004, 9 terrorist suspects were held in Belmarsh prison without trial. They were detained for three years and then appealed, The law lords ruled that the human rights were being abused and so they were released.

Question 4

What are some of the disadvantages of judicial reviews

Answer 4

Not always successful - in 2011 there were 11,200 judicial reviews and only 174 were successful.

Question 5

What is the role of a judge?

Answer 5

To safeguard the rights of individuals by checking the government.
Dispense justice, to ensure rule of law.
To interpret the constitution.
Create case law, rulings that will apply in similar cases.

Question 6

How can it be argued that judges have too much power?

Answer 6

• Codified constitution change is the role of judges and the legislator.
• Could be argued that judges aren’t equipped to make fine judgements about society or social economic matters no legal expertise.
• Judges aren’t representative enough.
• Judges are not held accountable to the people - out of touch?
• Have the right to revise legislation but not seek judicial supremacy.

Question 7

Define: rule of law

Answer 7

• Establishes that all conduct/behaviour throughout society should conform to a framework of law.
• Law is universal to everyone and applies to all, everyone should be equal. Eg. Fair trial
• The rights of individuals are not determined by the arbitrary behaviour of authorities.

Question 8

How effectively can the judiciary control executive and legislative power?

Answer 8

~Judicial review
~Rule of law
~HRA - contradicts it
~Can be involved in debates about controversial issues
—–
~Cannot review primary legislation
~Can’t be proactive - have to wait for cases to come to them
~Parliamentary sovereignty limits judges as they cannot overturn parliamentary acts
~Government can derogate from HRA or pass legislation that contravenes it

Question 9

How is judicial independence/neutrality maintained?

Answer 9

1. Separation of powers - Constitutional reform act 2005
2. Security of tenure - judges can’t be dismissed because of their decisions
3. Salary - comes from the Consolidated fund not from government
4. Contempt of court - conventions that forbid MPs from criticising court rulings and decisions
5. Judicial appointments - no government member appoints the judges, JAC

Question 10

How is judicial independence/neutrality threatened?

Answer 10

1. Prime minister still has a final veto over judicial appointments.
2. Political dialogue means indirect pressure placed on judges, eg. Charles Clarke criticised Belmarsh outcome.
3. The Justice ministry can interfere as government retains control through them.
4. The role of the Chancellor + crossover of elites - Oxbridge (know each other so can influence, same political stance).
5. Inevitable overlap, judges role is to uphold and interpret Parliaments laws.

Question 11

What is ‘ultra vires’?

Answer 11

When the government has acted beyond one’s powers, what the law allows them to do. Allows actions to be challenged.

Question 12

Give an example of an ultra vires case

Answer 12

HM Treasury vs. Ahmed and others.
As a counterterrorism measure the government began to freeze the bank accounts of individuals that were suspected. However the Supreme Court ruled that the government had acted beyond their power.

• Government then introduced new legislation the terrorist asset freezing act 2010 which parliament passed.

Question 13

How has membership of the EU strengthened UK courts?

Answer 13

EU law replaced any conflicting national law - doctrine of supremacy.

EU law doesn’t need approval of Parliament - doctrine of direct effect.

Question 14

What are remedial orders?

Answer 14

A process designed to be quicker understand it legislative process, by passes stages such as debates.
Used in urgent situations.

Question 15

What is the Griffith theory?

Answer 15

Social backgrounds of judges would influence the decisions they make, more likely to be Conservatives than Liberal.

Question 16

Define: civil liberties

Answer 16

The freedoms all rights that belong to individuals - they protect the individual from the power of the state. Many overlap with human rights.

Question 17

How effectively does the judiciary protect civil liberties in the UK?

Answer 17

~Increasing use of Judicial review
~Judicial independence (Supreme Court)
~ECHR gave codified rights which is binding on all but Parliament
~Rule of law
~Judges can express their views in the media and stimulate debate
—-
~Government still has some control over judiciary
~Judges are unelected so lack democratic legitimacy
~Judges can’t be proactive
~Lack of codified and entrenched constitution makes interpretation of Civil Liberties difficult
~HRA is not binding on Parliament

Question 18

Should the UK adopt a bill of rights?

Answer 18

~It would enable accountable gov which would ensure laws aren’t based on arbitrary wishes of ministers
~Improve trust and confidence
~Protect Civil Liberties - clear definition between individual and the state
~Educate citizens making them more aware of their rights as well as politicians being aware of their actions
~The foundations already exist in the UK, ECHR + HRA
——-
~Rule by judges, who are unaccountable
~Can lose some rights that we already have, artificial
~Individual minority rights might be emphasise at the expense of a wider needs of the community

Question 19

What are whole life tariffs?

Answer 19

Sentences to life in prison with no possibility that the sentence will be reviewed and no chance of release, unless by request of the Justice Secretary on compassionate grounds.

Question 20

Does the judiciary have too much power?

Answer 20

~Unelected therefore unaccountable 
~Rise of judicial activism 
~Members aren't distinctive enough 
~Increased use of judicial review 
~Judges challenge the sovereignty of Parliament 
------
~Judicial reviews play a key role 
~Gov can change laws to affect judges 
~Neutral position so can stop power abuse 
~Some are appointed by PM
~Uphold the rule of law which is necessary 
~No power to review legislation

Question 21

Define: declaration of incompatibility

Answer 21

When the terms of a statute law conflicts with the human rights act.

Question 22

Why is the judiciary becoming more politically important?

Answer 22

• Power transfer to EU means that judiciary now has to enforce these laws and interpret.
• HRA meant that citizens can assert their rights more forcefully so judicial reviews are now more important.
• The 2005 Constitution Reform Act made judiciary more independent.

Question 23

How can judicial power be seen as controversial?

Answer 23

~Beginning to challenge parliamentary sovereignty.
~Unelected and unaccountable.
~Judges decisions threaten government policies, such as law and order, terrorism, immigration, etc…
~Judicial review outcomes have meant that some public sector projects have been set back, eg building a 3rd runway at Heathrow.

Question 24

What 3 major reforms were made under the constitutional reform act of 2005?

Answer 24

1. The position of Lord Chancellor has been retained but the holder no longer presides over HOL or the head of the courts system.
2. Judicial appointments commission appoints judges and ensures that there is no political influence over the decision.
3. The 12 Law lords who previously sat in HOL have been transferred to the new Supreme Court 2009 - separation.

Question 25

How can the judiciary be seen as not neutral?

Answer 25

~Judges tend to favour the position of the state/public order.
~More likely to be conservative.
~Very few women and ethnic minorities are judges, may lead to bias.
~11 of 12 senior judges educated at Oxbridge, narrow social background.

Question 26

To what extent is there conflict between judges and government ministers?

Answer 26

•HRA undermines parliamentary sovereignty and therefore the states ability to function. Eg. Case of Abu Qatada.
•Increasing use of judicial reviews makes governing more difficult, especially those against ministers. Eg. •Extension of Heathrow.
•Supreme Court strengthened independence of judges and autonomy.
•F.O.I act means publication of cabinet papers.
——
•Judges cannot overturn statute law even if it contradicts statute law.
•Not all/most judicial reviews aren’t successful.
•Lots of judges and government ministers come from the same background so may think alike.
•Judges have to uphold rule of law.

Question 27

To what extent is the HRA controversial?

Answer 27

•Gives too much power to unelected judges
•ECHR imposes judgments that don’t take into account the culture of the UK, variations are needed
•Gives votes to those who may not deserve it
——-
•HRA necessary to check power of the state, vital counterbalance
•Strong rights culture which supports the operation of the act, especially left wing politicians
•Most HR are already part of the UK statute or common law

Question 28

Define: judicial activism

Answer 28

When judges become increasingly involved in political decisions.