Role of judges
Chief role is to define the meaning of the law. They interpret or ‘construct’ the law
Have a role in the separation of powers, as they do not ‘make’ law, they only apply the law as laid down by Parliament
It is difficult to determine, however, where interpreting the law ends and making law begins, as judges are often drawn into wider, non-judicial activities that may overlap with the functions of other branches of government.
What do judges do?
· Preside over court proceedings- they make sure the rules of court procedure are properly followed by both sides in a case. Acts like an umpire or referee. Job is to ensure a ‘fair trial’. Also serve as a source of specialist knowledge, providing, for example, advice to juries in criminal cases on points of law and, possibly, directing a verdict.
· Interpret and apply the law- interpret statutes laid down by Parliament. Apply, in theory, ‘the letter of the law’, exercising a measure of discretion in the way that they interpret statutes. This can lead to conflicting interpretations by judges and ministers.
· Decide sentencing in criminal cases- this role has been reduced in recent years, as a result of the wider use of minimum or mandatory sentences. Some judges argue that these allow politicians to encroach on the role of the judiciary.
What do judges do?
· Chair public enquiries and commissions- Used for this because of their reputation as being neutral and independent. Enquiries also run like court proceedings. (Judges inevitably come into close contact with ministers and senior officials, and this may compromise their independence and give them a pro-government bias)
Examples: Lord Nolan’s enquiry into standards in public life (1995)
Lord Scott’s enquiry into the sale of arms to Iraq (1996)
Sir William MacPherson’s enquiry into the killing of Stephen Lawrence
Lord Hutton’s enquiry into the circumstances of the death of the weapons expert, David Kelly (2003)
Rule of Law
· Law should apply equally to everyone, both rulers and the ruled.· A.V Dicey: ensures a ‘government of laws’, not a ‘government of men’· A collection of sub principles· Rule of law establishes the relationship between the government and the people· How far does it apply though? Harden and Lewis: described it as the ‘noble lie’ of the British constitution
· No one is ‘above’ the law. Everyone is bound by it, minsters and public officials as well as to other members of society.
· Rule of law aspect is upheld by administrative law and by the practice of judicial review
Concerns over the extent to which the principle applies in the UK:-PM and other ministers have Royal Prerogative, not subject to judicial oversight-Parliament is sovereign and can unmake or make any law and so is ‘above’ the law in that sense
-Parliamentary privilege principle means that MPS and peers are not subject to legal restrictions on what they can say in Parliament
-Queen, head of legal system, not properly subject to the law
Rule of Law
· Equality before the law: Law meant to treat all citizens alike, same legal rights and same access to legal system. No bias or discrimination.
-Only wealthy can afford top lawyers
-Legal aid not always easy to access and may exclude middle income groups
-Judges may be biased against women or ethnic minorities and poor because they tend to come from narrow and privileged social and educational backgrounds
· Legal redress available through the courts: in rights have been infringed, people should be able to protect themselves through the law. Law should fundamentally defend human rights. This aspect of the rule of law safeguards the individual from the state.
Concerns:-No entrenched bill of rights to protect fundamental human rights-Human Rights Act can be set aside by Parliament if it wishes-Access to European Court of Human Rights is expensive and time consuming
Rule of Law
· Law is always applied: Disputes must be resolved by the application of law rather than by other means. This means that there must be a certainty of punishment for breaches of law-law cannot apply in some circumstances but not in others. Punishment should only be for breaches of law, people should not be penalizes except through the due process of law.
Concerns over the extent to which the principle applies in the UK:
-Not all crimes reported and legally addressed e.g. rapes
-Police resources limited so not all crimes detected e.g. speeding offences
-‘Trial by the media- means people may be ‘punished’ without legal proceedings taking place or, perhaps, despite being acquitted
Judges and politics
· Meant to be strictly impartial and non political
· Important distinction between liberal democracies and authoritarian regimes, where the courts become instruments of the state
· Judges may be ‘political’ in two senses: they may be subject to external or internal bias, which should be kept at bay thought principles of judicial independence and judicial neutrality:
-External bias: The influence that other political bodies, particularly executive and Parliament, are able to exert over judiciary
-Internal bias: Prejudices and sympathies of judges themselves, particularly when these influence decisions they make
Are judges independent?
· Principle of judicial independence one of key parts of constitution.
· Should be strict separation between judiciary and other branches of government
· Judicial independence: principle that actions and decisions of judges should not be influenced by pressure from other branches of government
Independence of judiciary is maintained in a number of ways:
1) Appointment process: this process is meant to involve little political interference; otherwise judges may be selected on the basis of their sympathy for the government of the day. The establishment of the Judicial Appointments Commission has introduced greater independence into this process
2) Security of tenure: Means that once they are appointed, they cannot be sacked. Remain in office till their retirement of age 70. Senior judges can only be removed by an address by both houses of Parliament, hasn’t happened since 1830. Junior judges can be removed by Lord Chancellor, if, for instance, they are found guilty of a criminal offence.
Are judges independant?
3) Pay: Pay and rewards are safeguarded from political influence. Paid out of the Consolidated Fund, which is not subject to annual review by the House of Commons, and their salaries and other forms of remuneration are decided by an independent pay review body.
4) Freedom from criticism: Constitutional conventions forbid MPs, peers and ministers from putting pressure on judges by criticising court rulings and judicial decisions in Parliament. The ‘sub judice’ rule forbids people, including politicians, from commenting on cases that are currently being considered.
5) Independent legal profession: Judges are appointed from the ranks of lawyers who belong to an autonomous legal profession. Standards within the profession are regulated by the Law Society, not by government. Lawyers and judges therefore not trained by the state, as in some other European countries.
6) Role of the Lord Chancellor: The head of the judiciary is now the role of the Lord Chief Justice, and the Lord Chancellor’s influence over judicial appointments has been much reduced. Under Constitutional Reform Act 2005, Lord Chancellor has to swear an oath to defend the independence of the judiciary.
Concern over judicial independence:
Growing willingness of ministers to publicly criticize the courts. Applied particularly in the case of successive home secretaries. Examples include:
-In 2003, Blunkett condemned release of the 9 Afghan hijackers-2005, Charles Clarke criticized the release of terror suspects from Belmarsh Prison-2007, John Reid attacked decision not to deport the murderer of the London headmaster, Philip Lawrence, when he is released.
They are making public statements and expressing disappointment at the stance judges have taken and so the principle of judicial independence has been tested to its limit. However, there is little evidence that judges have been cowed by this public criticism. There is in fact greater evidence of judicial activism in recent years, suggesting a determination on the part of judges to develop their own view of the ‘proper’ application of law.
Judicial activism: the willingness of judges to arbitrate in political disputes, as opposed to merely declaring the ‘letter of the law’
Increasingly common public clashes between ministers and judges therefore provide evidence of the health of judicial independence. Beyond public criticism ministers have few other ways in which they can influence judicial decision making except through introductions of new Acts of Parliament.
Are judges neutral?
· Neutrality is the absence of any form of partisanship or commitment, a refusal to ‘take sides’
· In practice, neutrality as judges being political eunuchs is perhaps impossible to achieve, as all people have their own views and opinions and no one is capable of being completely impartial or objective.
· Their views and beliefs should not affect their professional behaviour
· Without personal preferences and beliefs, judges can act on the basis of legal considerations alone.
Judicial neutrality is maintained in a number of ways: 1) Political restrictions: Not supposed to engage in open political activity. Cannot join PPs, or support PGs or protest movements. Law Lords meant to confine their contributions to debates in the House of Lord to legal matters.
2) Legal training: The extensive process of legal training is designed to enable judges to focus entirely on legal considerations. Ability to act impartially and objectively is strengthened by the requirement that court proceedings are conducted fairly and judgements based on evidence.
Are judges neutral?
3) Accountability: Senior judges must explain their rulings, highlighting the points of law that have affected them. This strengthens objectivity. Law lords-each individual judge must provide an extensive written account of the case including legal issues that dictated their judgement. Existence of appeals and the knowledge that cases can go to higher courts also ensures accountability.
4) Not public figures: Traditionally been discouraged from speaking out on political matters on involving themselves in political controversy. The ’Kilmuir rules’ forbade judges from participating in public debates about policy matters but these restrictions have been relaxed since 1980s.
5) Griffiths: argued there tends to be a conservative bias in the senior judiciary, stemming from the fact that most judges are male, white, upper middle class, public school and ‘Oxbridge’ educated.
6) Arguments have been used that judges are biased against women and ethnic minorities etc. Particularly prominent during the 1980s, linked to the rulings made by Lord Denning and Lord Donaldson.
Taking a public stand on policy issues:
This is a growing trend amongst senior judges due, in part, because of the removal in the late 1980s of restrictions on judges engaging in public debate in the belief that their expertise and experience would assist the policy process. By writing speeches and articles, senior judges have demonstrated a growing support for human rights and civil liberties. This was notably evident in the 1998 Pinochet case, with Lord Hoffman having links with Amnesty International and the ruling was then overturned. Judges have also launched attacked on government policy:
-Lord Bingham, Lord Chief Justice: called for the rule of law to be understood to include protection for fundamental human rights & to require that states comply with their obligations under international law.
-Lord Woolf, Lord Chief Justice: spoke out against some of the provision of the Constitutional Reform Act and severely criticised the government’s handling of the c.reform process. -Lord Phillips, current Lord Chief Justice: criticized the wider use of mandatory sentences and in 2007 strongly condemned proposals for the creation of a Ministry of Justice. Although such interventions demonstrate the robust independence of the senior judiciary in theUK, it also highlights the extent to which judges have become public figures whose views can no longer be said to be ‘above’ politics.
Judges and civil liberties
The maintenance of civil liberties is seen as a defining feature of a liberal democracy. Civil liberties establish the relationship between the state and the individual. Provide citizens with protection from government interference.
· UK relied on the freedoms that are supposed to be embodied in the common law belief that ‘everything is permitted that is not prohibited’. UK citizens have ‘residual’ rights, the right to do anything the law did not forbid. ‘Residual’ rights were never clearly spelled out, so they were difficult to uphold.
· In recent years the protection of civil liberties has fallen to the courts, for two reasons:
-Wider use of the power of judicial review
-Introduction of the HRA
· Important way in which judges check the power of other public bodies, and decide whether other political actors are acting beyond their proper powers.
· In the UK, the absence of a codified constitution means that judicial review is limited compared to USA, as judges cannot overturn Acts of Parliament bc ps
· They can determine the lawfulness of actions that are carried out on the basis of delegated legislation. This is done by the doctrine of ultra vires.
· Traditionally been reluctant to use the powers of judicial review, but there has been a growth in judicial activism since the 1980s. In `1980s, only 533 applications for judicial review, by 1999 this has risen to over 4,500.· Ministers can be in the firing line or judicial review cases dealing with finance and tax pension appeals, and the provision of social security and child support.
· Example: the 2003 ruling that David Blunkett’s attempts to restrict the payment of welfare benefits to asylum seekers were illegal.controversial,· Important way to protect civil liberties and ensure that ministers do not act in ways that are illegal, improper irrational or simply disproportional.· On the other hand, judicial activism growth has been criticised because it allows judges, in effect, to make policy and, in the process, challenge the authority of elected governments.
Human Rights Act 1998
· Came into effect 2000, incorporated the European Convention of Human Rights (ECHR) into UK law.· The act was a major constitutional reform as it marked a shift in the UK in favour of an explicit and codified legal definition of individual rights.
· It widened the capacity of the judiciary to protect the civil liberties and check the exercise of executive power and legislative power.
· Did not introduce new rights
· Its main provision is that courts should interpret all legislation in such a way as to be compatible with the European Convention.
· So the main impact of the HRA has been that it has made the European Convention substantially more accessible to UK citizens, as before access to the Strasbourg court was very costly and extremely time consuming.
· HRA has brought European Convention to forefront of UK politics, affecting judicial decision making and behaviour of all public bodies
Ø RIGHT TO LIFE
Ø FREEDOM FROM TORTURE
Ø FREEDOM FROM SLAVERY OF FORCED LABOUR
Ø RIGHT TO LIBERTY AND SECURITY
Ø RIGHT TO A FAIR TRIAL
Ø NO PUNISHMENT WITHOUT TRIAL
Ø RIGHT TO MARRY, EDUCATION, FREE ELECTIONS WITH SECRET BALLOT etc.
· Cannot constitute as an entrenched bill of rights and cannot be used to overturn Acts of Parliament
· Does not therefore invest the judiciary with the powers of constitutional judicial review
· However, when a court believes that legislation cannot be reconciled with Convention rights, it issues a ‘declaration of incompatibility’ and this forces Parliament (or, the executive, in practice) to either revise the legislation or bring it into line with the Convention, or to set aside certain of its provisions through the process of ‘derogation’ (the repeal of modification of a law)
· Example: UK derogated from Article 5 of the European Convention, during 2001-05 in order to pass ‘tougher’ anti terrorism legislation
· HRS is not binding to Parliament, it cannot be considered as ‘higher’ law
· It hovers somewhere between an ordinary statute law and an entrenched bill of rights
Cases in which the HRA has been used
· Catherine Zeta Jones blocked further media intrusion into their private lives on the basis of their right to privacy (2003)
· Government’s attempts to restrict access to social security on the part of asylum seekers was overruled (2003)
· The rights of ‘spouses’ to succeed to a tenancy in the event of a tenant’s death was extended to homosexual couples (2004)
· Nine terrorist suspects held without trial in Belmarsh Prison were released on the grounds that the law on which their detention was based discriminated illegally between foreign nationals and UK subjects (2004)
The HRA and the rulings have led to considerable c
+ it has strengthened the ability of judges to apply the rule of law and uphold individual rights, including rights of unpopular minorities.
+ Will over time force public bodies to be more sensitive to civil liberties issues thereby promoting greater accountability and improving trust in government.
+ The HRA has educational benefits for the wider public, making them more aware and more assertive in protecting them
+ Helps to fulfil one of the functions of a ‘written’ constitution
+ Could be seen as evidence of a benefit of the UK’s flexible constitution as it provides effective protection for civil liberties but stops short of allowing judges to strike down Acts of Parliament
- The Act allows judges to overstep their role. Through their interpretation of the HRA, Judges are effectively able to ‘rewrite’ legislation.
- It’s not appropriate for courts to have ‘quasi-legislative’ powers under which unelected and socially unrepresentative judges can alter the law on policy matters, like access to social security and the right to a tenancy
- Conservatives in particular have either called for the amendment of the removal of the HRA, on the grounds that it constitutes an abstract set of principles which, once applied, lead to confusion and bad decisions. (OF course, the EU Convention has been accepted by Conservative governments in the UK since 1953)
- Applying an unbalanced view of individual rights that fails to take sufficient account of civic responsibilities or the need to protect the larger society. Has led to a battle over how civil liberties should be understood between judges and politicians.
Civil liberties under threat?
Conflict between senior judges and executive has been the result of at least three factors:
1) Growth of a human rights culture amongst the senior judiciary, which has been reflected in a greater willingness of judges to challenge ministers.
2) The impact of the HRA, which has widened the ability of judges to intervene in politics
3) A (perceived or actual) trend for governments to expand their own powers, often at the expense of civil liberties and individual rights.
Number three has led to allegation about the growth of authoritarianism in the UK and a police state.
Labour governments record on civil liberties since 1997: HRA and Freedom of Information Act 2000 marked a major advance in open government and helped to establish a public right to know. Another example of the strengthening of rights includes the establishment of the right to roam through the Countryside and Rights of Way Act 2000.
Labour’s critics: the growth of legislation that expands the power of the state and weakens or removes civil liberties or individual rights:
1) The right to trial by jury was restricted in 1999 by new rules that made it more difficult for people accused of theft, burglary and assault from opting to be tried by a Crown Court (where juries sit) rather than by a magistrate
2) Detention introduced for asylum seekers whose claims have been refused, and access to the benefits system has been replaced by shopping vouchers for refugees
3) Public order legislation has led to restrictions being imposed on the right to protest
4) Anti –social behaviour orders (ASBOs) introduced in 1990, imposing a range of restrictions on ‘offenders; often on the basis of hearsay evidence and in the absence of a jury
5) The Identity Card Act 2006 provides for identity cards phased-in on a voluntary basis from 2009, first for those renewing passports, but the compulsory phases will probably now not start until 2012
Anti-terrorism legislation: passed in aftermath of
· The Anti Terrorism, Crime and Security Act 2001: introduced detention without trial of foreign nationals suspected of involvement in terrorism, and gave the police more powers to hold and question suspects. (The Lords ordered the release of the nine terrorist suspects from Belmarsh Prison on the technical grounds that this law discriminated unlawfully against foreign nationals)
· Prevention of Terrorism Act 2005: Introduced a process of ‘control orders’ which allowed the secretary of state to impose various restrictions on the liberty of individuals who could not be deported. The majority of the Belmarsh detainees thenbecame subject to control orders.
· The Terrorism Act 2006: Heightened the government’s powers to deport people from the UK who were considered to be promoting terrorism. Introduced a new offence of ‘glorfiying, exalting or celebrating’ terrorism. However, the H of C rejected the proposed extension of detention without trial for 90 days in favour of 28 days
· Counter terrorism Bill 2008: sought to extend the period of pre-charge detention from 28 days to 42 days. Also proposes that inquests in terrorism cases be held without juries.
Conflicting views of civil liberty
The clashes between judiciary and executive is a conflict between competing views of civil liberty and contrasting ideas about which rights should be protected. When the government has been accused of threatening civil liberties, it has responded on the grounds that it is protecting other, different rights and freedoms. At the heart of this conflict are the rival ideas of ‘constitutional democracy’ and ‘majoritarian democracy’.
Critics of the government, including peers in H of L, Lib Dems and groups such as Liberty, have understood civil liberties as being closely related to human rights. Civil liberties, only ‘belong’ to the citizen, so should not be weakened or ignored by government. This presents civil liberties as absolute entitlements. This serves as the basis for democracy as they provide the ultimate guarantee that citizens can think and act for themselves.
The right to liberty is therefore a basic feature of liberal-democratic government. Lord Hoffman: ‘The real threat to the life of the nation comes not from terrorism but from laws such as these’
Ministers argue that they are defending, not attacking rights and freedoms. The rights of individual terrorists must be set against the rights of the larger society, especially right to life and freedom from fear, intimidation and violence. This implies that the right to life of potential victims may have to be weighed more seriously than the rights of terrorist suspects. The right ‘balance’ between civil liberties and public safety is a matter that should be decided by Parliament, acting in the interest of the mass of citizens, rather than by unelected judges. Senior ministers argue that this balance has to be adjusted to take account of the new and perhaps unique threat of global terrorism.
Reform of the judiciary-CRA 2005
· Replaces the Law Lords, will initially consist of the existing Law Lords who will remain members of the H of L but will lose their voting rights,
· Newly selected Justices will not be members of the H of L The Court will:
· Hear appeals on arguable points of law of general public importance
· Act as the final court of appeal in England, Wales and N.I
· Hear appeals from civil cases in England, Wales, N.I, and Scotland and criminal cases in E,W,N.I
· Assume the devolution jurisdiction of the Judicial Committee of the Privy Council (this makes the Court genuinely the ‘Supreme Court of the UK’)
· Strengthen separation of powers. Before the highest court of appeal in the UK, the Law Lords, sat in the H of L, creating a fusion between the judiciary and the legislature. Also, the office of Lord Chancellor, who was the head of the judiciary, presiding officer of the H of L and cabinet minister, was merged with that of Secretary of State for Constitutional Affairs. The Lord Chief Justice has become the head of the judiciary and a separate Lords Speaker has been appointed.
· CRA created the Judicial Appointments Committee and thus stopped ministers from exercising control over the appointment process and ensuring independence
· Attempts have been made to make the senior judiciary more diverse and socially representative, through the makeup of the Judicial Appointments Commission, six of whose members, including its Chair (Baroness Usha Prashar) are laypeople
The creation of the Supreme Court has divided the judiciary and provoked concerns.
· Could be argued that the government is trying to ‘tame’ the courts.
· Progress in making senior judiciary more socially representative is likely to be slow as they will be mainly appointed from the ranks of long-standing barristers and years of expertise
· Those who favour more radical reform see the Supreme Court as a ‘missed opportunity’
· NEED MORE REASONS AGAINST, -COST AND UNNECESSARY
UK Bill of Rights?
· In the USA, the Supreme Court operates within a codified constitutional system, which invests the senior judiciary with the power of constitutional judicial review, so they can therefore strike down Acts of Congress.
· The UK Supreme Court is subject to parliamentary sovereignty and cannot act as guardian of the constitution.
· The only court that can challenge the authority of Parliament is the European Court of Justice, which interprets and applies EU law and treaties.
· A ‘British bill of Rights’ as called upon by the Conservatives would perhaps be a weakened, revised version of the HRA. It would be revised in that it would no longer simply be based on EU Convention. Weakened in the sense that it may no longer be used to call other legislation into question.
· The Brown government has raised the idea of a UK ‘bill of rights and responsibilities’ to enhance the HRA, rather than replace it.
UK Bill of Rights
· An entrenched bill of rights that serves as higher law, as in New Zealand, that has an entrenched bill of rights without having a fully written constitution.
· An entrenched bill of rights would bring an end to current battles between judges and ministers over which rights should be upheld in which circumstances.
· Entrenchment would give designated individual rights unchallengeable legal authority
UK Bill of Rights continued
· Would widen the role of the judiciary and increase their political significance.
· Governments can currently overturn the judiciary’s interpretation of the HRA, but the judges’ interpretation of an entrenched bill of rights would be final.
· Would alter the balance of power between and amongst the branches of government
· Alter the political culture by creating a greater awareness of individual rights and freedoms (educate the public)