The Judiciary

• Interpret and apply laws passed by Parliament

• Decide on sentence length and type and accept/ deny bail

• Judicial review- another look at cases

• Investigate HR violations, but can only declare the case incompatible with the HRA

• Promotes rule-based governance

• The law should govern a nation

• A person cannot be subjected to individual will or judgement

• Everyone is equal under the law

• No person can be punished unless convicted of an offence by a court of law

Judges review the actions of public officials or public bodies in order to determine whether or not they have acted in a manner that is lawful

Judges have no power of initiation- they cannot seek judicial review

They can only make a declaration of incompatibility- don't play a quasi-legislative role unlike US

Examples

3rd November 2016- Article 50 judicial review

Lewisham Hospital 2013

• Hunt cut funding to A&E and Maternity
• reviewed on breach of NHS Act 2006
• High Court ruled he had acted out of his powers
• BUT AMENDED THE CARE BILL so future hospitals could not do the same

The judiciary is separate from and independent of the government, and acts without external political influence

• 2005 CRA --> independent Supreme Court 2009

• JAC approves Supreme Court judges; they are paid out of consolidated fund
  • Judges no longer take an active role in passing legislation

• Security of tenure- judges cannot be removed due to the decisions they make (unless gross misconduct)

However

• Lord Chancellor and Secretary of State for Justice has oversight of courts
• Home Secretary can pardon and reduce sentences

Yes

• Judges selected by independent JAC
• Security of Tenure- hard to remove judges at High Court level. Can only take place as a result of impeachment requiring a vote in both houses
• Paid out of consolidated fund- not subject to review by Parliament
• Salary set by independent Senior Salaries Review body
• Sub judice outlaws public comment on cases
• By convention, the legislative do not comment of individual decisions or individual judges

NO

• Absence of written constitution- would enshrine judicial independence in higher law
• These in junior ranks of the judiciary can be removed by the Lord Chancellor or the Lord Chief Justice e.g. 2 junior judges were removed for misconduct in 2005
• Parl. has the ultimate power to make decisions, incl. membership and powers of judiciary and the laws they must apply
• Limited by residual powers of the executive e.g. Secretary of State for Justice- appoints senior judges
• Ministers and MPs publically criticise judges for their decisions e.g. release of terrorist suspects from Belmarsh in 2005

• judges should not hold any outwardly partisan views
• Judges should make decisions based on common law and statute law only

• Relative “anonymity”- traditionally operate away from the public eye. Until recently, judges rarely spoke publicly on issues of law or public policy. 

• Restrictions of political activity- judges are not supposed to campaign on behalf of a political party or pressure group. Although they retain the right to vote, their views should not become public record. They also shouldn’t seek judicial review

• Legal justifications of judgements- expected to offer an explanation of how their decisions are rooted in law. It makes it less likely that senior judges will be guided by personal bias
  • E.g. Article 50 verdict was publically justified by the judge as the govt. cannot use the Royal Prerogative in order to implement legislation relating to the EU
  • Supreme Court voluntarily publishes a report annually, justifying decisions made

• Training- part of a highly trained profession, regulated by the Law Society. Commonly serve as barristers before taking to the bench and their elevation through the ranks reflects the belief that they are able to put personal bias to one side. 

• Judicial review- judges are increasingly in the public eye e.g. Article 50 in Nov. 2016

• Role of the media makes judges decisions difficult. Although there is sub judice, social medi can offer opinion when not meant to

• Too male dominated (only 1 SC female; 21% in the whole judiciary)

• Too white (20% BME)

• Increasingly politicised

• Level of education- 75% of Senior Judges at Oxbridge; 10/12 SC judges Oxbridge; 70% privately educated (15% from 5 schools)

politicised: making decisions on behalf of, or influcing, politicians or political affair (overly engaged in politics)

Yes

• Increase in judicial review, making govts. Job harder  direct challenge to the govt. e.g. 600 in 1991, 6000 in 2007

• Judges sometimes make rulings that may prevent the govt. from carrying out its function and political mandate e.g. Brexit/ Article 50- May must take it through Parliament

• Factortame Case 1990- through EU law, the judiciary was able to suspend Acts of Parliament

• Recent conflict between ministers and judges- ministers have broken convention in criticism  e.g. “I am fed up… with a situation where Parliament debates issues and judges overturn them” David Blunkett

No

• The judiciary and UK judges are the guardians of human rights and must carry out that function

• They uphold the rule of law: no one is above the law. Prevents govt. from treating people unequally for political party

• Judicial neutrality- not allowed to be members of a political party

• Cannot strike down UK legislation- declare it incompatible only. Don't play "quasi-legislative role" unlike US

• Judiciary and govt. are not always in conflict e.g. 2014 Gurkha Pensions

• Cannot seek judicial review- no power of initiation

• Fundamental freedoms and rights granted to citizens of a country in common or statue law e.g. freedom of speech, freedom of movement, freedom from arbitrary arrest

• DIFFERENT FROM HUMAN RIGHTS as HR are universal rights and freedoms to which all people throughout the world are entitled to

Magna Carta- three clauses guarantee certain liberties and rights.

• Church of England
• City of London and other cities, boroughs and towns
• RULE OF LAW- right to trial and habeas corpus

Bill of Rights 1689- established the supremacy of Parl. Included provision for free parliamentary elections, frequent parliaments and freedom of speech

Freedom of Information Act 2000- gives members of the public to request information held by public authorities and bodies providing a service for them e.g. schools, government departments etc. According to Ministry for Justice, the FOIA has “increased accountability” to help protect civil liberties

Introduced the Equality Act 2010 to protect civil libertie, prohibiting discrimination, harassment and victimisation in relation to 9 characteristics:

• age
• disability
• gender reassignment
• marriage and civil partnerships
• pregnancy and maternity
• race, religion or belief
• sex, and sexual orientation

“Nanny State”

Under the Labour Govt. 4,289 new criminal offences were created between 1997 and 2009. Some were said to be absurd e.g. illegal to swim in the hull of the Titanic without the permission of Cabinet Minister. 

Identity Cards Act 2006 for the registration of individuals- scrapped in 2010 by coalition

Snoopers charter: allowed government to intercept communications, acquisition communication data etc. Used trivially for dog fouling and school catchment areas

Theresa May: email surveillance used heavily in the UK

• made challenging public authorities more accessible
• incompatible laws can be scrutinised --> increase in judicial review (600 1991; 6000 in 2007)
• E.g. May 2006, unlawful to deport Afghan hijackers to their own country

• Creation of the Supreme Court
• Judicial Appointments Commission
• Separates the judiciary from the excutive and legislative

• Through judicial review and judicial independence they ensure that the government does not abuse their power

• They have a role in upholding civil liberties

• They uphold the rule of law (whereby citizens are treated equally under the law)
• judges can make decisions which are not affected by public opinion, unlike politicians

• Judges are unelected and unaccountable- they can make decisions which do not take itno account public opinion or the national interest

• Government should make decisions in a democracy, not jduges through interpretation

• Judges regularly challenge the sovereignty of Parliament when they uphold EU law or the ECHR

• Senior members of the judiciary come from a narrow social pool (11/12 SC judges are male and 11/12 attended Oxbridge) It can be argued that this means they are out of touch and cannot make appropriate decisions