Full Judiciary Notes

What are the features and functions of the judiciary?

Precedent – that is used to justify similar occurrences at a later time to ensure every case us treated the same way

Judicial review – courts review decisions by the state of any public body in relation to its citizens. If a citizen has been treated unfairly or a public body has exceeded its powers, the court may set aside the decision

Dispensing justice – lower courts have the role of ensuring legal justice is delivered. Citizens should be treated equally under the law and is applied to them in a fair way. Trials and hearings should be conducted in a way to ensure all parties gain a fair hearing	Dispensing justice ensure the judiciary has a political role as it maintains the equality of dispensing justice to citizens through free and fair trials
Interpretation – the law is open to. Causes conflict over what the law says and what the law means. Judges interpret the law and the meaning of it	Interpretation is seen as controversial as it is a the Judge’s discretion – therefore one judge might be more sympathetic than another
Creating case law – the application of law in specific kinds of cases are established and the precedents are deemed case laws. The laws are also known as judge made laws.	The judge made laws can be viewed as controversial as judges are changing the law to suit a new circumstance effectively
Declaring common law – law developed by tradition, dealing with disputes relating to inheritance, commercial practices and rights of citizens	Common law should easily be established to be applied by judges. When there are no relevant statute laws, a judge would have to take evidence of what the common law is. This is controversial as cases differ in circumstances and the rule of judicial precedent would apply.
Judicial review – citizens may appeal against the government’s decisions that they are against. Natural justice is granted to citizens that haven’t been treated fairly. Judicial review is asked for in the High Court when a court will set aside a decision Ministers/civil servants not dealing with different citizens equally. Government/public body has exceeded its statutory powers	Judicial review is seen as controversial because of the HRA 2000. This meant that courts reviewed actions by government and public bodies, therefore, overriding the HRA. Judicial review is also controversial because during 2000, the Freedom of Information Act giving citizens and the courts a right to see a wider range of official documents. Right to privacy is overridden by the Freedom of Information Act
Public inquiries – Judges are called to conduct public inquiries into matters of widespread public concern. Judges are both experienced in handling such issues and independent of government because they are politically neutral.	The absence of inquiries between 2003 – 2010 shows how controversial they are. It indicates the reluctance of governments to order public inquiry
External jurisdiction – government activities are constrained by legal system outside of England and Wales. Devolution Acts do not remove the need for a higher power to resolve issues. Disputes under British governments/courts will be referred to the Court of Appeal or the Supreme Court a further appeal to the European Court of Justice	This is controversial because the different levels of courts suggest that judges make decisions but are not sovereign, PARLIAMENT is.
Sentencing issues – judges are in control of how long they want to sentence a criminal for. The only restriction for the judge would be for homicide, where life sentencing would be mandatory	Sentencing criminals us seen as being political as members and MPs are argue that judges are not accountable to the public. It is also seen as controversial with the ‘life sentence’ and what this actually means. It is also controversial as ministers want to introduce a minimum sentence for certain or reoccurring crimes essentially depleting a judges power.

Political role of the judiciary

The Legal and Constitutional environment of the judiciary
Sovereignty of Parliament – cannot be overruled by the judiciary. Law that is offence to human rights or discriminates unfairly. They have power to set the law aside.

The Belmarsh case gives ammunition in defence of individual rights; they cannot overturn a statute that has been properly passed by Parliament. 2002, Mental Health Act better treatment for those suffering from mental health problems.

Rule of law – deeming equality through a fair trial and the right to appeal to a higher court if they need to.

Judicial precedent – higher courts may overturn an interpretation made by a lower court; with the Supreme Court overturning for a final decision.

Privacy of EU law – EU takes over domestic law; problems of the EU law will result in the cases being passed to the European Court of Justice

Why the judiciary has become more politically important

·       Maastricht Treaty – 1992, has given power to the EU, such as EU Social Chapter

·       Human Rights Act – 2000, citizens assert rights more forcefully. Cases that claim European Convention of Human Rights being infringed by state organisations end up in the courts for important judgments

·       2005 Constitutional Reform Act – judiciary more independent; Supreme Court has exercised its independence over key cases over the years

Why is judicial power controversial?

·       Judicial power challenges parliamentary sovereignty

·       Not elected and therefore not accountable with no authority to make decisions with political consequence

·       Judges decisions threatening government policies in law and order, terrorism, immigration, asylum seeking and policy on welfare benefits

·       Judicial review have meant public sector projects have been set back – Third Runway at Heathrow

The independence of the judiciary

·       If the judiciary was not independent, then the government could exceed its powers – tyranny

·       The judiciary protect people within a society from being discriminated against, as government could choose to discriminate against or in favour of their political group, the Labour Party being more sympathetic to working class

·       Judges are selected on a politically neutral basis to prevent a collision with government

Independence maintained	Independence is threatened
Security of tenure – judges cannot be removed from a judiciary because of their decision, allowing them the freedom to make decisions without fear of being removed and fear of reduced pay.	Government retains the control of the legal system through the Justice Ministry.
Contempt – no political pressure upon judges, interference would be strongly criticised against Parliament	Open political dialogue over sentencing policy and the protection of rights; indirect pressure on the judiciary
Independent Appointments – 2005, Judicial Appointments Commission, allowing no political interference	Senior judges handled by the JAC but the PM has final vote over such appointments
Training and experience – all judges are previous, experienced lawyers who are impartial

Judicial independence – the principle that the members of the judiciary should retain independence from any influence by government or parties

The main parties are criticising the judiciary that it is politically biased. However, there is little or NO political bias amongst the judges.

Judicial INDEPENDENCE Judges are kept free from political pressure

Judicial NEUTRALITY Judges are free from political/ other bias

Judiciary lack neutrality	Judiciary is NEUTRAL
Narrow social, professional & political backgrounds Middle/upper class backgrounds, mostly privately and then Oxbridge educated – affects their outlook: in favour of the centralised state	Judgements have fallen in favour of minorities Belmarsh case Mental Health Act
Senior judges also have seats in the Lords – influence	Implementation of the Human Rights Act – in favour of individual rights.
First Supreme Court 2009 wasn’t socially balanced: 11/12 male Average age was 68	Social composition has changed little; more independent/liberal minded judges have been appointed to higher positions
	Independence away from political pressure ensures the neutrality of the judicial branch

Civil liberties in the UK

Civil liberties – rights and freedoms that citizens can enjoy from the state; the right to vote, stand for election, freedom of association and haebus corpus/fair trial

Until the HRA, the UK had no codified set of civil liberties – citizens understood the extent to their freedom in terms of the limits to those freedoms

Threat	Civil liberty affected
Increases in police power due to growth in crime rates, resulting in more power being granted to law enforcement agencies. Criminal Justice and Public Order Act 1994	Right to a fair trial
Limiting trade union activities	Right to free movement/ freedom of speech
Increasing quantities of information  held by the police, social security system & the NHS	Right to privacy
Tension between government and media about what can be printed and broadcasted	Censorship and freedom of information
Growth of governmental power and the ability of Parliament to weaken that power	Parliamentary sovereignty weakening government Civil liberties being threatened by an over powerful executive
Cuts in availability of legal aid	Right to a fair trial

The threat to civil liberties

Freedom of information and open government

Freedom of Information Act – passed in 2000 BUT DIDN’T COME INTO EFFECT UNTIL 2005

1.     Select committees in the Commons – open government (check Parliament notes for details on select committees)

2.     Data Protection Act 1984 – right to see the contents of computer files that contain information about them

3.     Freedom of Information – for citizens to see government papers; national security and private communications in government cannot be seen by the public. Extension of civil rights

THE EXPENSES SCANDAL 2009!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

Revealed the expenses that MPs had been abusing; resigned and didn’t seek re-election

Maria Miller, Conservative Secretary of State duly resigned after claiming £90,718 in expenses over a four-year period towards mortgage payments on a house in south London

The Human Rights Act

©     HRA established in 1998

©     European Convention of Human Rights was included into British law becoming effective from 2000.

©     The HRA was established with the desire to bring British constitution in line with Europe who already have special arrangements to protect individual rights

©     New Labour stressed active citizenship; citizens have responsibilities in their communities and in return their rights should be better understood and safeguarded.

©      

©     Devolution settlement arranged by Welsh and Northern Irish assemblies and the Scottish Parliament were bound by the convention, however Westminster is not.

©     If a citizen challenges the law on the basis that it conflicts with the Convention – the court will agree that it is incompatible; Belmarsh detainees December 2004

The Belmarsh case

o   8 citizens accused of being Islamic terrorists

o   Detained without trial legally under the Anti-Terrorism Act 2011

o   8/9 Lords ruled that the detention of the suspects contradicted the European Convention; government had to amend the Anti-Terrorism law to make it compatible with the convention

o   European Convention is ALL-POWERFUL and all bodies with the exception of Westminster Parliament must conform.

A British Bill of Rights?

1.     The ECHR is established by the European Council and out of the hands of the UK Parliament

2.     ECHR delegates too much power to UK/European judges neither of whom are elected or accountable

3.     Over vigorous application of the ECHR effectively thwarts government policy in law, order and anti-terrorist measures

4.     The UK is a country whilst Europe is a continent; what affects many other European countries will inevitably be different from what affects the UK, in terms of privacy law, family law, immigration and asylum seeking

The government and the judiciary – areas of dispute

Home Secretaries have sought to gain more control over crime whilst the judiciary believe sentencing should remain as a judicial power – they have resisted minimum sentences for particular crimes, and it is therefore at the jurisdiction of the judge; perhaps offering non-prison alternatives. This reinforces the idea of politics being outside of the court and the freedom of the judiciary to make their own decisions and decide how to conduct cases. Sentencing council – set guidelines that judges should follow

Judges have publicly criticised the erosion of civil liberties Criminal Justice Bill 2003 – the accused could be tried twice for the same crime, without a jury, past convictions could be used against them. Judges vehemently disagreed; changes would lead to the miscarriage of justice Judges will challenge the government powers when individual rights are threatened

Judiciary should be seen as neutral. Ministers are elected & accountable, judges are not; no right to obstruct the political process Judges are the guardians of individual rights

The reform of the judiciary

o   Lord Chancellor was historical; cabinet minister, speaker of the Lords and Head of the Judiciary – member of all three branches of the government. Advised government on legal and constitutional matters, appointing senior judges. Leading figure in making of government policy.
Being a member to all three branches challenged democracy and prevented a lack of ‘the separation of powers’

o   Senior judges were appointed by Lord Chancellor with support of the Prime Minister
Judiciary has political influence threatening law and the independence of the judiciary

The House of Lords is no longer the highest court of appeal
Make up of judges who are part of the legislature who had a place in making and implementing the law

o   Judiciary should be totally independent of government and protected from influence from the government
In such circumstances, the judiciary who control arbitrary power of government uphold rights of citizens maintaining principles of justice and rule of law

Constitutional Reform Act 2005

o   Lord Chancellor was RETAINED but didn’t reside in the Lords. Lord Chancellor wasn’t the head of the courts system, a non-political post, Lord Chief Justice became head of the judicial system

o   Secretary of State for Constitutional Affairs created to advise the government on  constitutional issues

o   Judicial Appointments Commission – to propose candidates for senior judicial roles; JAC ensures no political influence over a decision.

o   12 ‘law lords’ moved to the highest court of appeal The Supreme Court – symbolic as it persuaded the public that the separation of powers was physical and the Supreme Court was really independent

The British courts and the European Union

After Factortame (1991) and ex parte EOC (1994), two rulings established that the EU law was superior to UK law.

1.     British courts must enforce EU law

2.     If there is a dispute over UK and EU law, European Court of Justice will have the final say

The European Court of Human Rights

Nothing to do with the union:

ECHR was set up by the Council of Europe
European Convention on Human Rights incorporated into British law in 1998, and eventually enforced in 2000.

If The European Court of Human Rights rules that the Convention has been broken, it can order a reversal of the decision.

The European Court of Human Rights is the highest court of appeal – cases go no further

The European Court of Human Rights cannot however, set aside any law made by Westminster Parliament.
Tamanna