The Judiciary - under the constitution

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The relationship of the judiciary to the executive

Ultra Vires - Beyond ones authority. In the UK, the term is most commonly applied to public officals who have acted beyond the auhority granted to them in law.

Whereas the US Supreme Court can avoid Acts of Congress, UK courts cannot declare parliamentary statutes unconstitutonal. This is because statute law is the supreme source of constitutional law in the UK.

What UK courts can do is review the actions of government officals in order to decide whether or not they have acted unlawfully, that is Ultra Vires.

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EU membership and judicial power

Under the European Communities Act (1972), the UK incorporated the Treaty of Rome into UK law. The effect of this was to give European laws precedence over conflicting UK statutes, whether past or present. Before 1990, this meant that the European Court of Justice could challenge UK statutes. Following the Factortame Case (1990), UK courts have also been able to suspend UK statutes that appear to be in violation of EU law.

The Factortame Case (1990)

The case grew out of a complaint by Spanish fishermen that the Merchant Shipping Act (1988) violated the Single European Act (1986) in requring vessels using UK fishing quotas to re-register and meet certain nationality requirements.The High Court referred the case to the European Court of Justice (ECJ) and told the Transport Secretary not to apply key sections of the Act until a final ruling.The House of Lords overturned this instruction, arguing that no UK court had the power to suspend statute - at least until the ECJ could make a final determination.

In 1990, the ECJ ruled that UK courts do have the power to suspend Acts of Parliament that appear to break UK law.

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Judicial independence and neutrality

Judical independence is the principle that those in the judiciary should be free from political control. Such independence allows judges to 'do the right thing' and apply justice properly, without fear of the consequences.

Judical neutrality is where judges operate impartially (without personal bias) when administering justice. This is necessarily as part of the rule of law, by which:

  • everyone is equal under the law.
  • no one is above the law.
  • everyone is entitled to a free and fair trial.

The absence of judicial independence threatens judicial neutrality, because if judges are being controlled they are not able to be impartial. However, judicial independence does not gurantee judicial neutrality - judges may still allow their personal views to influence their administering of justice.

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How is the independence of the jury maintained?

In theory, judicial independence results from a number of different factors:

  • Judges' security of tenure - it is extradordinarily hard for judges at High Court level and above (the senior judiciary) to be removed. Indeed, this can only take place as a reuslt of impeachment proceedings requring a vote in both houses of Parliament. Those in more junior ranks of the judiciary can be removed by the Lord Chancellor and the Lord Chief Justice. On the 17 May 2008, for example, the Guardian reported the results of a Freedom of Information ACt (2000) request, confirming that two junior judges had been dismissed for misconduct in 2005.
  • Guranteed salaries - judges' salaries are free from political manipulation, being drawn from the Consolidated Fund.
  • Contempt of court - under sub judice rules it is an offence for ministers and others to speak out publically during the course of legal proceedings.
  • An increasingly indepedent appointments system under the JAC.
  • The training and experience of senior judges - the pride they take in their role and in their personal legal reputation.
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