Government and Politics - Unit 2.4 The Judiciary and Civil Liberties Notes

Notes on unit 2.4 the judiciary and civil liberties notes (Not full notes, but covers the majority of areas)

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The Human Rights Act
The European Convention on Human Rights has been in existence since 1950, yet had little impact in the UK as
governments did not see it as binding on them. This all changed in 1997 when Labour decided to incorporate the
Convention into British law. This was done in 1998 with the Human Rights Act.
It stated that all legislation, actions and decisions made by any decision makers had to conform to the
convention. If it did not, the courts could dismiss any legislation if it were successfully challenged. It seems very
powerful, however it contained crucial exemption. This was the principle of the sovereignty of government. It
was therefore decided that the Westminster Parliament would not be subject to the convention. If legislation is
introduced that conflicts with the convention, it must alert Parliament by making a `declaration of
incompatibility'. Parliament will then decide whether the legislation is important enough to set aside the
There is one other safeguard, if a citizen/group of citizens challenges a law on the basis it is incompatible with the
Convention, then the court may agree and declare it incompatible. This does not make the law invalid, but
government and Parliament will be made aware of the decision of the court. This happened in the 2004 Belmarsh
detainees' case. Suspected terrorists were detained without trial because they were suspected terrorists. 8/9 of
the members of the House of Lords found that this contradicted the convention. The government came under
enormous pressure to amend the AntiTerrorism Act to make it compatible with the convention which did
Examples of areas covered by the Human Rights Act:
For the first time in its history, the UK has a positive set of codified rights. These rights are not entrenched, as
Parliament retains the right to remove them all, but it is very hard to see this would ever happen in the foreseeable
A British Bill of Rights?
In recent years, the Conservative Party has pushed a British Bill of Human Rights that would replace the ECHR
established by the Council of Europe. Arguments for this include:
The ECHR, established by the European Council, is out of the hands of the UK Parliament.
The ECHR puts too much power in the hands of both the UK and the European judges. They are not
elected or accountable.
The overvigorous application of the ECHR by the courts has thwarted the introduction of government
policy in areas such as law and order and antiterrorism measures.
What suits other European countries in terms of rights may not be applicable to the UK. They are
therefore not specific to our nation's needs.
The Political Role of the Judiciary
The judiciary has the overall task of administering justice, only a minority of the total judiciary is involved with cases of
political significance. These include:

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Dispensing Justice ­ not so much in lower courts, but magistrates, crown and county courts have a vital role in ensuring that
legal justice is delivered. All citizens should be treated equally under the law and it should be applied in a fair way. All parties
should gain a fair hearing and the law should be applied in the spirit intended.…read more

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There are four ways in which independence is guaranteed in the UK. These are
Security of tenure.
i) This is a key principle says that judges cannot be removed on office on the grounds of the
decisions they make. The only reason a judge can be removed is if they are shown to be corrupt.
Therefore judges have the peace of mind to make decisions without fear of dismissal, even if they
offend the government.…read more

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There were consistent decisions in favour of the
government over trade union rights and policing powers. Many senior judges also had seats in the House of
Lords and this used to be seen as a largely Conservative institution. In addition the first Supreme Court which
began in 2009 had 11/12 of its members educated at Oxford or Cambridge. Only 1 was female, and the average
age was 68. Overall it looked very Conservative.…read more

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Also, senior judges are now appointed independently of government by the Judicial Appointments
Commission. They are more independently minded and are willing to use the media to express their
Why is judicial power controversial?
Some argue that they are beginning to challenge parliamentary sovereignty.
Judges are not elected and not accountable so they should not be able to make decisions that will affect
legislation made by MPs.…read more

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The reform of the judiciary
The Labour government that had taken office in 1997 had an aspiration for this change, but political will had been
lacking until then. The reasons for reform were:
The ancient office of Lord Chancellor was a member of all three branches of government. His position
was the most dramatic example of the lack of separation of powers in the UK. If Britain were to claim to
be a modern democracy it had to rid itself of this position.…read more


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