TERMINOLOGY: Define- Civil Liberties, Human Rights
Civil Liberties- Mark out the private sphere of existence that belongs to the citizen not the state. Civil liberties include a range of rights and freedoms and imply the rolling back and limitation of state power and are seen as the defining feature of liberal democracies. Known as 'negative'.
Human Rights- Rights which people are entitled to for being human and considered essential. They are described as positive freedoms and imply the government should intervene to protect them. For example the right to be protected from discrimination.
Judicial Independance- A key part of the constitution, without it the rule of law can't be maintained. It is based on the strict seperation of powers and means the judiciary can experience the law according to legal training and experience acting as a check and balance.
Judicial Neutrality- Judges are required to be neutral and their final rulings are expected to be free from political preference, judges are forbidden from joining political parties and rules dictate how judges can interpret the law, they are appointed after lengthy legal training.
Political activism- An intention to bring about political change in support of opposition or against it which comes in a wide range of forms. For example writing letters to the Prime Minister etc.
What are the six methods of maintaining Judicial I
Appointment process- The government established the JAC to select candidates.
Security of tenure- Cannot be removed from office except if the law is broken.
Pay- Paid from public revenue and not determined by Parliament.
Freedom from criticism- Forbid MP's and Peers from putting pressure on judges.
Independant legal profession- Not trained by the state.
Role of the Lord Chancellor- There is now the Lord Chief Justice and speaker of the Lords following the constitutional reform act of 2005.
Give three ways in which Judicial Independence is
1. The appointment of judges when controlled by PM and Lord Chancellor- Fused the roles of the Head of the Judiciary and the executive. For example the JAC took much responsibility for the appointment of judges.
2. Public Criticism- A growing threat to the independance of the Judiciary. For example John Reid attacked the decision not to deport murderers of London Headmaster Phillip Lawrence.
3. The Fusion of Powers (2009)- The 12 senior Law Lords and large numbers of the senior members of the Judiciary sat in the Lords. For example they were involved in the political process and independance couldn't be guaranteed.
Give two concerns over Judicial Neutrality
1. Socially unrepresentative composition- Political bias is inevitable given the social background of the senior judiciary. For example only 3% of all judges in England and Wales come from ethnic minorities.
2. Favourable to the Conservative Party- Suspicious of progressive ideas and hostile towards groups that challenge it. For example the judiciary did nothing to challenge anti-trade union legislation of Margret Thatcher.
Give four ways Judicial Neutrality is seen to be m
1. Judges are forbidden from joining any political parties- They cannot even openly support them whilst they hold Judicial office. For example the constitutional reform act of 2005 split the fusion of powers.
2. Rules dictate how judges can interpret the law- This ensures it is strictly done only on the basis of legal considerations. For example judges do not simply make up their own decisions.
3. Judges have to justify their interpretation- Judges have to write lengthy legal explanations after every case. For example if there was an appeal a Judge would have to justify their decision.
4. Judges have lengthy legal training from the law society- Judges are apppointed from the ranks of barristers and solicitors with lengthy legal training. For example judges are chosen for their capabilities and intellect.