How do judges make law?
- Declaring common law - a great deal of law is unwritten but is commonly believed to exist and to be enforceable. Sometimes there is no statute law that can be applied or any common law to follow, so judges must decide what the law is (precedent applies). Example: Murder is common law crime, not statute law yet is a very important law. However conditions are set out in the Homicide Act 1957 so Parliament do have some statute law to back up common law.
- Interpretting statute law - Example: In the case of Cheeseman 1990 an old statute was misinterpretted so a technically guilty man was found to be not guilty due to an unclear statute.
- Developing case law - Example: Donoghue v Stevenson established the principle of 'oweing a duty of care'.
What kinds of case have political importance?
- Enforce European Convention of Human Rights - Giving prisoners the vote.
- Interpret meaning of human rights legislation.
- Enforce the 'rule of law' - Chris Huhne.
- Ensure all sections of society are treated equally and prevent discrimination.
- Prevent government abusing or overstepping its statutory power - Judicial Review Ridge v Baldwin 1964 case established that citizens should appeal against injustices ('natural justice')
- Interpret law so are involved in the law making process.
How judicial independence works?
- Judges cannot be dismissed on the basis of their decisions. This means that the government cannot put pressure on a judge by threatening dismissal. This is described as security of tenure. Example: Judges of High Court and above can only be dismissed on address to the queen by both houses of Parliament.
- Salaries of judges are protected and guaranteed by the independent Senior Salaries Review Body. For example judges salaries do not have to be approved by Parliament so they will not be threatened by loss of income for unpopular decision. But can be rejected by PM.
- When a case is 'sub judice' (underway in courts), nobody is allowed to comment on it. This reduces political pressure on judges.
- All judges are appointed by an independent Judicial Appointments Commission, so little interferrance with appointment. However the excecutive and PM can use their power of veto to reject an appointment.
- Senior judges are forbidden in engaging in active politics so they have no party allegances. Example: Cannot be in Parliament or sit in the lords.
- Constitutional Reform Act 2005 created the Supreme Court so ministers couldn't influence.
- Although Justice Ministry doesnt directly control judges, still have influence over legal system.
- There is no way of entrenching judicial independence.
Why is judicial independence important?
- The rights of groups and individuals can be protected from abuse by government or other organisations.
- It is important that government should not be allowed to exceed its legal powers.
- Rule of law can be better protected by independent judges.
- When there is a need to interpret the meaning and operation of the constitution it is important not to let government do it iself as they may manipulate the interpretation to suit itself.
- The judiciary should not be unduly influenced by any body or organisation in case it is required to dispense justice involving such a body.
- Where there is a widespread public demand for action, judges can stand above public opinion and protect rights, equality and the rule of law. (e.g. discrimination against ethnic minority.)
Principles of Judicial Neutrality?
- Judges must not be politically active.
- It is expected that judges should show no favour to any group in society, e.g. on the basis of gender/ethnicity.
- Professional judges are trained to make decisions purely on the law and not on the basis of their personal opinions.
Why is it important?
- Ensures that judges treat all sections of society equally, without prejudice.
- Prevents political bias creeping into judgements.
- Gives citizens confidence that they will be treated fairly.
Grounds for judicial review:
- Offends ECHR and is an abuse of civil liberties - Belmarsh case 2004 suspected terrorists were held without trial which was held to be a breach of HR so government changed legislation so terrorists could only be held for 28 days.
- Offends a principle of common law
- It was ultra-vires - Suspected Terrorist ban assets case 2010 where the court ruled that the government did not have the legal power to freeze the bank assets of suspected terrorists. The government then passed parliamentary legislation to allow it to freeze such assets.
- It offended natural justice/rule of law - Abbey National 2009 the courts ruled that the Office for Fair Trading had no legal power to investigate bank charging practices (ultra vires)
- The correct administrative procedures were not followed.
How can the judiciary control government power?
- Upholding rule of law.
- Upholding civil liberties
- Act as a check on the use of excecutive power by judicial review.
- The courts can adjudicate in a neutral and independent way if there is a dispute among government bodies, often between central gov and regional/local bodies.
- Courts, including EU courts prevent the UK government or state from coming into conflict with EU law, including the ECHR.
Evaluation on judicial power over government?
- Judicial review has a wide scope to deal with claimed abuses of government power.
- The HRA has given judges added power to prevent government from exercising excessive powers that threaten individual rights.
- Conventions and statutes concerning the independence of the judiciary have resulted in a more active judiciary,
- Judges retain wide powers over the sentencing of convicted criminals.
- Abscence of a codified constitution and the existance of ill-defined government powers makes it hard to judge whether power has been abused.
- Parliamentary sovereignty means that a government that controls a parliamentary majority can grant powers to itself or agencies and the judiciary cannot prevent this.
- Parliament can place constraints on judiciary and sentencing powers.
- Gov and Parliament can claim that judges are unelected and unnaccountable so do not have the right to challenge the power of the elected and accountable gov and Parliament.
Judicial Power in Practice?
- Child Poverty Action Group v Secretary of State for work and Pensions - The ultra vires case made an important ruling that the Department of work and Pensions did not have the legal power to force people to return overpayments of welfare benefits when the Department was at fault.
- Family of Justin Smith v Secretary of State for Defense - The court ruled thatthe ECHR does not normally have any force with troops serving abroad.
- Public Inquiry - Leveson inquiry from 2011-2012 where there was an inquiry into culture, practices and ethics of the press. However the reccomendations that the media should be self regulated and there had to be a press standards board created were ignored/ never implemented.
Eurpoean Convention of Human Rights Cases.
Afghan Hijackers case 2006 - A controversial ruling that a group of Afghan refugees who had hijacked a plane to the UK could claim asylum seek work in the UK on the grounds that their lives would be in danger id they were deported. Judges appeared to priorisise civil liberties over national security.
Campbell v MGN Ltd 2002 - Naomi Campbell was pictured leaving a drug rehabilitation centre. The mirror published the pictures and courts decided that under the HRA Campbell had a right to privacy. This was contrevercial as unelected judges made decision that restricts freedom of press. Prioritised privacy over press freedom which gov were unhappy with.
Insurance Discrimination Case 2011 - ECHR ruled that insurance companies could not discriminate against men by charging them higher car insurance premiums than women.
Gillan v Quinton v UK 2010 - Two individuals were stopped and searched near an arms fair in London under the Terrorist Act. The ECHR judged that stopping and searching people without good reason breached privacy rights. It was contreversial as a British matter was beinbg decided by EU court and also it favoured privacy over national security.
How do the courts uphold civil liberties?
- Refer to European Court of Human Rights and decide whether a right has been infringed. They may reverse a decision and/or order compensation.
- Declare that common law has been breached and change a decision.
- may refer to a Parliamentary statute which protects a particular right and inforce this (e.g. Equal Opportunities Legislation)
- May refer to EU legislation.
- Judicial review may take place at the request of a citizen.
Do judges uphold civil liberties?
- Rule of law - Government should operate within the rule of law. Stops excecutive abusingpowers so stops gov rerstricting civil liberties. Example: Chris Huhne was punished for driving offences. Upholds fact that excecutive are not above law. However judges may be politically influenced.
- Judges can enforce the ECHR when a citizen claims that a public body has broken the convention. Example: ECHR said that prisoners should get the vote but Cameron disagreed and legislation has not changed as parliament remain sovereign. ECHR cannot overturn UK law made by Parliament.
- Judicial Review - citizens may ask for a judicial review when they believe a body has exceeded its powers. Example: Qillan and Quinton v UK ordered a judicial review after they were stopped and searched . ECHR held that Terrorism Act 2000 violated article 8 but nothing has changed. However citizens have to bring cases to judges, they cannot be proactive.
Do judges uphold civil liberties?
- Uk judges cannot declare any law to be unconstitutional on the grounds is offends civil liberties. Even if a law made in the UK Parliament threatens civil liberties, courts cannot do anything about it unless Parliament choose to ammend the law. Example: Public Inquiry (Leveson) judges made reccomendations however Cameron has not yet implemented them.
- Judges cannot be proactive, they must wait for cases to be brought to them. Example: Belmarsh case could only rule on terrorist detention until it was brought to the courts. Government then changed the legislation so it shows that they are respected and their reccomendations are usually implemented.
- Judges in the ECHR or ECJ may overturn UK law but UK Parliament does not have to abide by the ruling. Example: Factortame Case - established that EU law is higher than UK law. However in Gillan and Quinton case Parliament did not change legislation.
European Court of Human Rights
- Sits in Strasbourg and hears appeals from citizens from all parts of Europe. It bases its decisions on the ECHR which most European Countries are signatories. NOT PART OF THE EUROPEAN UNION.
European Court of Justice
- Based in Luxembourge and is the highest court of European Union. Roles:
- Settles disputes between EU member states.
- Settles disputes between European Commission and a member state.
- Interprets meaning of EU law and decides how it should be applied.
- Hears appeals from individuals and groups who feel that their economic or social right under EU law may have been abused.
- Judgements of ECJ are binding on all member states including UK.
European Court Cases
- ECHR Cases
- Vote for prisoners 2005 - ruled that the denial of prisoners right to vote abuses their rights. In 2011 Parliament chose to ignore this ruling.
- DNA retention case 2008 - Court ruled that it was against right to privacy to retain the DNA profile of persons who have not been convicted of a crime. The government then were forced to detroy many DNA profiles.
- Stop and Search Powers 2010 - Court ruled that it was an abuse of rights for the police to stop and search attenders at demonstrations without any crime. These powers are now under review.
- Factortame Case 1991 - Stated that all laws of the UK (in this case the Merchant Shipping Act) could not conflict with EU law (common fisheries policy). So this transferred much sovereignty to EU law.
- Jobseekers Allowance 2004 - Court ruled that citizens of any EU state could claim jobseekers allowance in the UK.
- Car insurance 2011 - Court ruled that it was against EU law for car insurance companies to charge different premiums to men and women. Companies had to change their charges.
Reform of Judiciary
Constitutional Reform Act 2005 provisions:
- LC's position to appoint senior judiciary would be removed.
- Lord Chief Justice to be put in charge of legal system.
- Supreme Court was set up in 2009 which replaced the Law Lords' role. New members of the court would not neceaarily be granted a peerage.
- Judicial Appointments Committee was to be established which is free from bias and political interferance.
- However LC can still reject a reccomendation and PM can veto a controversial appointment.
Effects of constitutional reform:
- Judiciary was made more independent.
- Independence of judiciary meant that they were more confident to exercise their powers.
- Increased judicial activism meaning that judges have become more willing to challenge governmental power to assert civil liberties.
- Improved legitimacy of judiciary has encouraged judges to be more outspoken on the legal, constitutional and political issues.
- Brought the judiciary increasingly into conflict with governments.
Examples of Judiciary-Government Conflicts.
- Judges assert their right to make decisions on sentencing of convicted criminals while governments have insisted that this is a political issue to be determined by them as they are elected and accountable.
- Judges have been active in protecting civil liberties. However governments have a responsibility to protect national security (e.g. suspected Terrorists cases) so they come into conflict.
- In 2011 conflict erupted over the issues of privacy and freedom of the press. Judges tended to safeguard personal privacy whereas government were determined to protect freedom of press.
- Ministers have become uneasy about an increasingly active and independent judiciary interpretting law instead of leaving Parliament to do this.
Are judges too powerful?
- Not elected and make precedents which affect UK citizens but may not be representative/accountable to them. example: Supreme Court have narrow background. However are professional and neutral.
- Challenge sovereignty of Parliament, e.g uphold EU law as seen in the Belmarsh case where they upheld EU law and went against Parliament.
- Narrow social background, not representative - 80% private schooled and all from narrow legal backgrounds. However so is parliament where 30% went to private school compared to 7% of population.
- Can prevent government from carrying out functions by protecting Human Rights. Example: Government made changes to hold terrorism suspects but HR changed this. However Parliament do not have to implement this as seen in the Gillan case.
- Only make reccomendations (Leveson inquiry no reccomendations have been implemented.) However ECJ must be implemented or could face fines.
- have to wait for cases to be brought to them (Judicial review - Gillan 2010)
- Can only make judgements on the law, not morals etc.