What do judges do?
1) Dispensing justice
Magistrate, Crown and County Courts have a role in ensuring legal justice is delivered to all. And everyone is equal under the rule of law.
Judges must interpret the meaning of law in cases where a meaning of a statute passed by parliamnet is unclear - to set a precedent regarding that statute.
3) Creating case law
It is not always clear how existing laws should be applied to a particular case. Especially true on laws regarding race, sex and sexuality. Once a decision is set then a judicial precedent is set.
What do judges do? (Part 2)
4) Declaring common law
These are rules of behavious that are developed by tradition. Often involving issues such as inheritance. If there is a problem in settling disputes in such areas then judges will make a decision that will become law. Judicial precedent is set and applied.
5) Judicial review
Whereas with the Supreme Cour in the US, British courts cannot say that statutes are unconstitutional (uncodified nature). This is because statute law is the supreme source of constitutional law. What UK courts can do is review the actions to see if they acted ultra vires (beyond power). In the last 20 years, that has been an increase in judicial review usage especially with housing or immigration. Citizens see it as more effective then tribunals, ombudsman and the citizens charter. (Judicial reviews set up by Ridge vs. Baldwin 1964 which established that citizens could appeal against decisiobns by government that appear to be against natural justice). Most obvious example is Gary McKinnon and the extradition case.
What do judges do? (Part 3)
6) Public enquiries
Normally held either to exam the merits/demerits of particular policy (eg Heathrow Terminal 5 enquiry) or to scrutinise the past actions of public officials. The Leveson enquiry against phone hacking is a key example.
7) External jurisdiction
The courts have to settle any dispute oncerning the jurisdiction of the Socttish Parliament and Welsh/Northern Ireland Assemblies. Also some of the issues arise over the jurisdiction of UK or EU law.
8) Sentencing issues
Since 1990 with growing crime rates many Home Secs have tried to take the control over sentencing away from judges. Judges argue against this saying they should be independent. Politicians counter this by saying they are not accountable to the public. Politicians are winning by setting minimum sentences.
Limitations on the Judiciary's role
1) Sovereignty of Parliament
Parliament cannot be overruled by the judiciary, even if the judiciary consider a law to be against human rights. Only there to interpret the law and enforce the law passed by parliamen. Give a critical opinion and suggest a change to the law.
2) Rule of law
All citizens are considered equal under the law and entitled to a fair trial; also applies to the government.
3) Judicial precedent
Only a higher court can overturn judicial precedent set by a court.
4) EU law primacy
EU have control over some laws such as agriculture, fishing and trade and UK courts must accept it (Factortame case).
Judicial involvement in politics
Scarman report - Asked by Home Sec to investigate 1981 Brixton riots
Nolan report - Investigation into standards in public office and sleaze
Scott report - Investigation into the selling of chemical weapons to Iraw in 1996
Hutton report - Investigation into death of David Kelly by govt and BBC
Sir John Chilcot - Report into the legitimacy of the Iraq war (civil servant not judge)
Gary McKinnon - Hacker used judicial review to fight extradition to the USA
Michael Howard - Jamie Bulger and his extending of sentencing - HoL ruled unlaw
David Blunkett - Fixed sentencing for life - judges stripped him of power ultra vires
Belmarsh Prison - Law lords went against the internment of terror suspects
Cameron - Leveson enquiry into phonehacking and against the Supreme Court's decision to allow sex offenders to appeal for their names to be taken of the register
How effectively do the judiciary control parliamen
- Practise of judicial review on legislation to investigate decisions made (GaryMcK)
- Judges can set aside actions by public bodies which goes against Human Rights (Belmarsh prison)
- Opinions expressed can be considered against common law/HRA (Bulger case)
- Ultra vires cases prevent ministers/public bodies exceeding power (Blunkett)
- The judiciary works with the rule of law (Expenses scandal against parlia. priv.)
Judges do not control
- Judges cannot overturn legislation Parliament has sovereignty
- Where ministers decisions can be reviewed by the judiciary, the government can pass primary legislation which allows such policies and decisions (Belmarsh and Davis case allowing anonymous witness testimonies)
- Judges cannot be pro-active and must wait for the case to come before them
- Judges are expected to maintain a low public profile and neutrality
It is important for the judges to be independent so that no other power can influence their decisions. Citizens must feel certain that any cases will be dealt with fairly and under the rule of law. Judges must be selected neutrally rather than being in the government's ideology.
Features which create an independent judiciary
1) Security of tenure
They cannot be easily sacked from their jobs (other than improper behaviour). This means that judges do not have to worry about their jobs when making any decisions on legal matters. Their salaries are also very high so that bribery is not a possibility.
2) Appointment of judges
Not appointed by government but JAC - all positions advertised like any other job and all positions are appointed on basis of merit not background or friendships. Judges would have had to climb up the ladder to get to the top. The Supreme Court also ensures that the seperation of powers is complete with the HoL not being the highest court and being abolished.
Features which create an independent judiciary (Pa
3) Legal Immunity
Have legal immunity from civil actions in their capacity as judges; basically meaning that they cannot be convicted for the decisions made in court. This is important because otherwise a judge may have been prevented from directing the course of a trial to ensure that justice was done.
4) Sub judice rule
The rule that proceedings cannot be mentioned in public unless the judge allows to do so (to prevent undue political pressure). However, most cases are open to the public and press (limitation mentioned in different card) and judges must give full reasoning for their decision
5) Contempt of Court
It is contempt of court for any government servant to interfere with a court case or to comment on it outside of the proceedings.
Features which create an independent judiciary (Pa
6) Support from Parliament
There is a parliamentary convention that judges are not criticised in Parliament. This is important in protecting judges from political accountability. In addition, this convention prevents politicians from being manoeuvred into the judicial arena by pressure groups or the media.
7) Media interest
Except in cases where the judge has imposed restrictions on journalists, the media can gain access to the courts. This is especially important on cases involving civil liberties. In such cases, it effectively stops the politicians from interfering with judge's decisions.
Limitations on judicial independence
1) The executive appoints who is in JAC
2) Politicians are more likely to enter into open political debates and dialogue over cases over sentencing and human rights (Al-Qatada)
3) The UK political system is still not characterised by a rigid seperation of powers. The head of the judiciary has a position in Cabinet and controls sentencing as Minister for Justice.
4) The Law Lords (who compromise the UK's highest court) are also members of the of the HoL. By being unelected and having proximity to the judiciary it poses a threat to democracy and seperation of powers.
5) Increased media attention in cases. While it is democratic for a media to ensure that a public's opinion is heard it has led to open political debate over the case.
6) Criticisms over sentencing given out by judges and pressure on govt to change to issues - Blunkett tried as well as Howard with Bulger case.
Arguments that the judiciary is neutral
- Judges must act in a way that des not create bias with the defendent or ministers in judicial review
- The judges must follow the rule of law - all are equal under the law and entitled to a fair trial - this applies to govt ministers as well
- Judges are oblidged to enforce the law of Parliament
- New breed of liberal judges Lord Justice Taylor favouring EU law and HR
- Belmarsh case with the law lords voting in favour of the HR act (found that internment was illegal in prison without trial
- Supreme Court with sex offenders can appeal to have name removed off register with Supreme Court voting in favour of the case - Cameron slated
- MPs with expenses scandal saying it goes against parliamentary immunity
Arguments that the judiciary is not neutral
Looks at background of judges and suggests that have the same upbringing as ministers and discriminate against minorities by favouring the status quo.
He also looks at the cases which are cleared to be in the national interest which was decided in the Clive Ponting case where the judge declared that only the executive can decide what is in the national interest
- Spycatcher book banned sue to its risky details of govt secrets
The preservation of social order makes judges act more harshly to preserve the state of the country. They are hard on crimes that challenge the fabric of society.
- Birmingham 6 or Guildford 4
Judges view on socio-political issues of the day
- Miners dispute - jud. frozr assets of senior members and NUM
- Printers dispute - with Wapping