Judiciary and Civil Liberties

• 3rd branch of government which relates directly to law making and government
• In Britain: complex - 3 different systems 

Dispensing Justice: interpretation of the meaning of the law- equal and fair

Creating Case Law: Making 'judicial precedence'- how should the law operate in specific circumstances

Declaring Common Law: in declaring common law, judges are effectively law making (common law is not made by Parliament)

Judicial Review: citizens can appeal against decisions by the Government that are seen as being against 'natural justice', unfair.

• holds Gov to account and asserts rights of citizens
• 2000 HRA: courts can now judge on whether actions of Gov controvene the HRA, e.g. Mental Health Act Case 2002: a person declared mentally ill had to prove own fitness to be released!
• 2005 FOI: right to see wider range of official documents

Public Inquiries: judges asked because used to handling issues and independant from Gov: neutral, e.g.Leveson inquiry in phone hacking  13th July 2011

External Jurisdiction: courts have to settle disputes, e.g. devolution - who has power? EU Courts of Justice or British Courts

Sentencing Issues: Since 1990s growing crime rates- Home Secs have tried to take control of sentancing away from Judges. Judges disagree as they should be independent

High Court

• Senior Judges
• Judicial Review
• Where Judges may be asked to interpret laws and define their meaning of application

Appeal Court

• Very senior Judges
• Divided into criminal and civil appeals courts
• Appeals from high courts where a further look at the interpretation of law is needed by higher senior judges and appeals involving HR

Supreme Court

• Most senior Judges - 12
• Hear appeals from lower courts
• Wide and important political significance cases
• Settling disputes over conflicts between British and EU law

Parliamentary Sovereignty:

• Judiciary cannot overrule Par. (source of all political authority) even if law considered to be against HRA, e.g. Belmarsh case 2004: anti-terroism legislation contradicted the HRA
• Judges cannot legally defy the legislative will of Par. 
• Don't have power to set law aside: can only suggest changes and give critical opinion

Rule of Law

• All citizens are equal under law
• Judges must apply this principle and make sure that all citizens are entitled to a fair trial

Judicial Precedent

• If a judge makes an interpretation of law, creates new case law or declares common law- all future courts must abide by it 
• EU law takes precidence over domestic law e.g. Factortame Case 1991- fishing act

Why is it important?

• cases involving Gov should be free of influence from Gov
• citizens need a fair hearing
• enhances democracy
• courts need to be politically neutral and so must be free to exert pressure

Security of Tenure:

• Judges can make decisions without fear of dismissal- only dismissed if shown to be corrupt as a result of personal conduct incompatible with being a judge
• salaries are high- not susceptible to bribery

Contempt of Court:

• Contempt of court for any Gov member to attempt to interfere 
• prevents any political pressure being placed on judges, e.g. Herceptain case 2006

Judicial Appointments Commission 2005:

• Supreme and Appeal members no longer appointed by Lord Chancellor 
• little/no influence over appointments

Background of Senior Judges:

• Cases must be judges on basis of law not according to personal opinion

Gov controls legal system though Ministry of Justice:

• Not direct control but suggests interference

Discussion of sentencing policy:

• not direct but has potential for indirect influence
• increasing tendency

PM has final veto over appointments:

• part or the prerogative powers given by monarch
• theoretical problem 

Judiciary are free from all political bias

increase in number of recent cases against the Gov:

• e.g. Michael Howard (con. Home Sec) lost a lot of judicial review cases by his prison regime 'abusing human rights'

Human Rights Act 2000

• Increase in judicial power over state in favour of individual rights
• Labour want to amend it

Social Background

• Less narrow minded 'liberal' judges appointed, e.g. Lord Woolf and Hoffman
• membership becoming more diverse

Narrow Social background:

• majority of judges= male, white, privately educated and Oxford/Cambridge students
  • 2009 Supreme Court: 11/12 Oxford/Cambridge educated and male (average 68 years old)
• John Griffith 1977 argument:
  • judges= lawyers: effects the way they think and act
  • more likely to think conservatively rather than liberal 
• Judges have seats in House of Lords : conservative institution - favour interest of state rather than individuals

rights and freedoms citizens enjoy in relation to the state, e.g. right to vote

rights of the citizens that are guaranteed by law 

What are our civil liberties? examples

• freedom of speech
• freedom of assembly
• freedom of movement
• freedom of the press
• freedom on association 
• right to a fair trial
• freedom of religion
• freedom from arbitrary arrest and imprisonment 

Thatcher Government of 1980s put civil liberties under curtail 

• Increase in police power due to increase crime rates so more power granted to law enforcement agencies
• 1980s legislation limited trade unions activity (protests etc.)
• Increase quantity of information the state could hold: DNA database etc
• Press freedoms: Gov couldn't limit all printing and broadcasting 
• Fear that Gov was too powerful so could limit right of citizens 
• UK citizens could appeal to EU Court of HR but not the UK one as it is not binding

And post 911, 2001, curtailed further (even under Labour rule)

• e.g. advanced notification had to be given to all protests within 1km of Westminster: 2005
• e.g. terrorism acts extension on how long prisoners can be detained without charge - 14 days was increased to 28 (tried to increase to 90 days in 2006 but lack of public support)

1997 Labour Manifesto promised:

• to reform and enhance civil liberties
• 'real rights for citizens'
• to incorporate European Convention of Human Rights into UK law
• Freedom of Information
• end of discrimination

Freedom of Information Act Jan 2005: Gov was too secretive, e.g. Data protection Act: info about themselves 

Human Rights Act:

• 1998, implemented in 2000
• states what rights and liberties of citizens are
• e.g. protection of property, right to life, right to marry 

Strengths

• HRA has given the Judiciary a codified set of rights upon which to judge whether executive and legislative actions threatens civil liberties. 
  • binding on all but Parliament - weapon for judges 
• Claim to be independent
• Easier for citizens to seek judicial review so that judges hear many more cases of political importance 
• Supreme Court = more independent than House of Lords used to be

Weaknesses

• Parliamentary sovereignty means that judges are forced to accept legislation of Westminster
• HRA is not binding on Parliament
• Judges can't take positive action to influence legislation before presented in Parliament
• Judges lack democratic legitimacy - not elected or accountable
• Where judges are obstructing Gov, law can be amended to force them to comply with Gov wishes

• Lord Chancellor (head of legal system, cabinet speaker and speaker in House of Lords) - member of all 3 branches of Gov
  • if Britain is to claim to be a modern democracy, he must lose judicial role
  • Reform Lord.C position of appointing judges to enhance independence and rule of law - free from political influence
  • now Judicial Appointments Commission 2005
• Confusing and unjust that House of Lords is made up of judges who were also members of the legislature, therefore making as well as implementation of law
• Judiciary should be totally independent of Gov and protected from influence from Gov

• Position of Lord.C retained BUT no longer head of courts systems
  • Replaced by Lord Chief Justice (non-political post)
• Can no longer appoint judges: now Judicial Appointments Commission- ensures that there is no political influence over decisions - decrease political interference
• 12 Law Lords who sat in House of Lords and formed highest court in appeal in UK were removed to new Supreme Court in 2009
  • New name and location may well go some way to persuading the public and the media that the UK's highest court is truly independent 

• Judicial reviews have a wide scope to deal with claimed abuses of Gov power
• The HRA has added power to judges to prevent Gov from exercising excessive power which threatens rights
• The 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 

• The absence of a codified constitution and the existence of ill-defined Gov powers make it difficult to judge whether power has been abused
• Parliamentary sovereignty means that Gov that controls its Parliamentary majority can grant powers to itself or its agencies through legislation and the judiciary can do nothing to prevent it
• Parliament can place constraints on the judiciary in its sentencing powers
• Gov and Par. can claim that judges are unelected and unaccountable and so go not have the right to challenge the power of the Gov and Parl. 

• Home Secs want to gain more control over sentencing issues in serious crime cases. Judges disagree
  • Judges resent political interference and believe they should be free to conduct cases as they wish in their own courts
  • 2010:introduction of the Sentencing Council - role is to set sentencing guidelines for judges to follow
  • But fear that it will take discretion away 
• Lords Woolf and Philips publicly criticised erosion of Civil Liberties that would occur if Gov introduced tougher anti-terroism measures
  • 8 Law Lords declared 2001 Anti-Terroism Act unlawful and also insisted Criminal Justice Bill of 2003: prisoners allowed double jeopardy.
  • Judges in Supreme Court are willing to challenge Gov when rights are threatened

• Judges have a tendency to get publicly involved in political controversies (e.g. Anti-Terroism Act 2001)

• Angers Gov ministers who insist they are politically neutral
• Home Secs Blunkett and Clarke criticised Judges for being too politically active: not elected or accountable - no right to obstruct the political process