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How well can the senior judges control the power of government and protect civil liberties? (40
Although the main role of the judiciary is to administer the law, the senior judges, mainly in the
Supreme Court, also have two other roles. One is to prevent the government from overstepping its
powers. The other is to safeguard and establish the civil rights of the citizens. This essay will explain
and analyse these powers, showing how judges can carry out their functions, but will also show that
there are important limitations in what they can do.
Since the passage of the Human Rights Act, the senior judges have been given the task of
interpreting what our rights are and of ensuring that they are not abused by the state or any other
public body. The rights in the HRA include the right to free expression, to privacy, to a family life and
to freedom of movement. If a citizen appeals, asking for a judicial review of some action by a state
body, he or she will get a hearing and the judges may rule that their rights have indeed been abused.
They can order the reversal of the decision or even compensation. Here are some recent examples
of this happening:
In 2011 a group of travellers appealed that they were being unjustly evicted from their site at Dale
Farm. They said it offended their rights to movement and a family life. In this case the judges ruled in
favour of the local authority and they were thrown off the site.
The most famous case was the Belmarsh case. There were nine terrorist suspects who were being
held for a long time without trial. The government claimed this was necessary in the interests of
public security. Their appeal was under `habeas corpus', which says that people should not be held in
custody without trial. The judges ordered that they be freed and told government they could not
abuse rights in this way. As a result terrorist suspects can now only be held for a maximum of 28 days.
This is also a useful example in that it showed how judges can control the misuse of power by
Another example was the case against Chancellor Gordon Brown in 2006 when he froze the assets of
suspected terrorists. They appealed successfully and the courts said the government of the day had
overstepped their powers. The funds had to be unfrozen. This was therefore an ultra vires case.
Governments cannot simply exercise powers unless they have been approved by Parliament. It is the
job of the courts to stop abuses of power like this.
There have also been many cases of asylum seekers who have appealed against being deported on
the grounds that they will be in danger if they are sent home. Some also claim they have formed a
family here and so their right to a family life, established by the HRA, is being abused. There are also
cases heard like this about immigrants, legal and illegal.
A judicial review is a case where citizens claim one of four things. One is that their rights are being
abused. Another is that the government is using powers which it does not lawfully have. Thirdly, it can
be argued that natural justice has been offended, in other words a decision was unfair. Finally it can
be that proper legal procedures have not been followed when a decision is being made. Often these
cases are against such bodies as local authorities, the NHS, schools, the benefits system or the
taxation authorities. We do not hear much about thousands of cases like this, but they are very
important to citizens and make sure that the state does not abuse its power. There is a limitation to
this in that it can be expensive to take cases to court and so many citizens may be `priced out of the
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The judiciary is able to control the government successfully because it is independent. This means
that judges cannot be dismissed or have their salary reduced by ministers if they are unhappy with
their decisions. Politicians are also not allowed to comment on cases that are in progress. Judges are
also neutral so they do not show any favour to one side or the other.
There are also important limitations to the power of the judges in such cases.…read more