Gov & Politics- The constitution

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Judiciary- What are the roles of judges?

  • To ensure that laws passed are in accordance with the constitution
  • Interpret what the law means and set out how it should be applied in particular cases
  • Decide over criminals trials for serious offences, resolve disputes, deliver sentences and make sure rules of procedures are properly applied.

In the past if they were Law Lords, they would sit in Parliament, contriuting to the debates on public policy and helping the House of Lords. Since the Consitutional Reform Act (2005), from 2009 they now operate in the new Supreme Court (Final Court of Appeal)

  • Now taking on a greater political role as part of the political system, as the third branch of government. Reviewing govt's decisions. Seen to be upholding the will of the legislature and guardians of the law. Carry out judicial review of laws and actions.
  • Some trust their judgement and expertise believing them to be independent and incorruptible. Other politicans see them as a threat to their policy making.
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Why are the judges playing an increased role?

  • Due to the expanding role of government, there is more legislation for them to adjudicate

  • The greater complexity of government which leads to greater conflict and disputes which need resolving.

  • There is a greater focus on the rule of law and the rights of citizens since the Human Rights Act

  • People are more willing to use courts to get what they want. (eg- culture of suing/litigation)

  • Politicans are unwilling to deal with sensitive issues so they leave tem to the courts to resolve (eg- abortion, stem cell research etc)
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How is the independence of the Judiciary secured?

  • Independence is important in a liberal democracy, decisions should NOT be influenced by government and should be able to function freely.
  • Constiutional Reform Act (2005) helped the independence of the Judiciary from the Leglislature and Executive. Limited the judicial role of the Lord Chancellor, and established a new Supreme Court, seperate from the HOL and removed Law Lords from Parliament.
  • How judges are selected- used to be appointed by Government, most senior judges appointed by the Prime Minister & others by the Lord Chancellor. Led to jobs being given to by relatives and friends and weren't chosen on judicial merit. Instead chosen by political leanings.
  • New independent Judicial Appointments Commission (JAC) from 2005 changed this. Commission puts forward their own nominations and clear restrictions on power for government to reject them.
  • Their security of tenure- judges retain in their position subject to good conduct. Government cannot just choose to remove them. There have been no dismissals in the 20th/21st centuries.
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How is the independence of the Judiciary secured?

  • Their political neutrality, (expected to hold no politican opinions and to be 'above and beyond politics). They interpret but do not make the law. They need to be beyond politics and commited to justice.

  • Sentence of judges are not subject to parliamentary debate or criticism. Although sometimes, irritated politicans make comments on leniant sentences.

  • Granted immunity from the law of defamation, meaning they're allowed to attack someone's good name and reputation in a court.

  • Given fixed salaries to ensure they're not open to corruption.
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What sort of people are appointed as judges?

Overall background : 

-elitist & unrepresentative, born into professional middle clsses, often educated at public school and then Oxbridge. Tend to be wealthy, conservative in their thinking, and middle aged when first appointed. Low percentage of women and ethnic minorities. (MALE, PALE & STALE)

  • In 2007, 664/3545 were women, and 123 were ethnic minorities.
  • Of the 21 judges approved to be High Court Judges in 2008, all were white, male, former barristers, and six of the nine who were educated in the UK went to independent schools. Only 8% recommended for appointment were black or asian, and 34% were women.
  • Those judges in the Supreme Court when opened, 10/11 went to Oxbridge, 9/11 went to independent schools, 10/11 were men and the average age was 67.8

They were seen to be out of touch with the lives of people from different backgrounds. They simply can't understnad habits and terminiology of everyday life.

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Why has there been in a growth in judicial review?

JUDICIAL REVIEW- the process that enables judges to override decisions and laws of an elected government by determining whether they are legal. Make rulings on whether laws are constitutional, resolve conflicts to do with civil liberties and those witin government. Can monitor public official's actions and nullify those illegal or unconstitional.

Judicial review has become increasingly more relevant, between 1981 and 1996, cases of judicial review rose from 500 to nearly 4,000. A growth in judicial review caused great resentment within government & ministers. Home Secretary, Michael Howard (under Major) had a number of decisions considered to be unlawful.

Continued under Labour govt where judges sided agaist the government on issues of immigration and asylum seekers- declared parts of Nationality, Immigration and Asylum Act (2002) illegal. Said that Anti-Terrorism and Security Act 2000 was unlawful and discriminatory. Judicial review ruled against the government in 2004 on its immigration control policies regarding Roma Migrants (Belmarsh Detainees?)

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What impact has the European Convention of Human R

ECHR was drawn up in 1953 and Britain signed the document. ECHR guaranteed certain rights for people. (Life, Freedom from torture/slavery, right to liberty & free trial, freedom of thought and religion, right to marry and have a family etc.) Meant that citizens who felt their rights had been denied could take the case to Strasbourg for compensation.

Courts of Human Rights in Strasbourg interpret Convention in each case. Often going against the British government. Prisoners won the right to consult a lawyer, or write to an MP. Corporal punishment in schools was ruled out, armed forces had to allow lesbians/homosexuals.Although it was difficult for people to acess Strasbourg as it cost money and was a very slow process, sometimes taking up to 5-6 years to reach a decision, consequently making people give up.

The convetion became part of British law as a part of the Human Rights Act in 1998, but it became operative in 2000. Now British courts have to review these decisions. Judges are now able to declare laws incompatible with Convention and government would be able to change it in reaction. In this way, it would not pose a threat to Parliamentary sovereignity.

Judges are now able to apply human rights law in their rulings. They can hold government and public bodies to account for their actions.

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What impact has the European Convention of Human R

There has been a mixed reaction, and many occasions seem to have faied.

  • A schoolboy arsonist was allowed back into the classroom due to his right to education,
  • a ****** was given compensation for appeal being delayed
  •  a burgular was given money to a sue a man whose house he broke into
  • serial killers allowed hard-core **** due to right to information and freedom of expression

Some are upset that the HRA has been used by those who engender little public sympathy, specifically criminals and foreign nationals using deportation.

  • For example some Afghanisatan hijackers in 2006 were allowed to stay in the UK as they had been denied their rights under the HRA. Some have requested a formal Bill of Rights which has clearer terms and exceptions.
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