The Judiciary

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What is the Judiciary?

One of the three branches of goverment (the Exexcutive, the Legislative and the Jucidiary)

Used as a wide term for anyone that is involved in the administration and application of justice. The branch of government responsible for the adjudication of law and arbitration between parties in any legal dispute

Refers to all UK judges from lay magistrates to Law Lords

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Organisation of UK Courts

  • Supreme Court (created in 2009)
  • Court of Appeal (Criminal and Civil Divisions)
  • High Court
  • Country/Crown Court

Judges at all levels ensure that justice is done and the law is upheld

At the lower levels, the main role of the judge is to preside over trials and impose sentences

At High Court Level, judges hear more serious cases and hear cases on appeal

From the Court Appeal level and above, Judges are concerned with clarifying the meaning of law,not just applying it. They set precedent.

Cases heard at Court of Appeal level are normally a result of confusion from in the lower courts. They also deal with cases arriving from HRA 1998.

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The Roles of Judges

  • Preside over trials for serious cases (Criminal Law)
  • Deliever sentences
  • Peacefuly resolve matters between individuals (Civil Law)
  • Uphold the will of the legislature; take responsbility for applying its rule and securing liberties
  • Have responsbility for judicial review
  • Can be asked to chair enquiries
  • Up until 2009 they used to sit in Parliament

Why have their roles expanded?

  • Expanding role of Government, more legislation to adjust
  • Protection of civil liberties/rights- bringing judges into the political fray
  • An un-willingness of politcians to deal with sensitive issues such as abortion, euthnasia etc.
  • Increasing complexity of government machinery, higher chances of conflict between branches of government
  • Increase in groups being willing to use the courts to get their demands made
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Judicial independence

Judicial independence is a fundamental characterestic of liberal democracy

Implies that there should be a strict separation between the judiciary and other branches of government 

It is excepted that the judiciary should be able to functin freely without any interference from the government

One of the key differences between a liberal and authoritarian state

Secured in Britain in 3 ways:

  • Their security of tenure
  • Their political nature
  • The way in which they are selected
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Selection of judges

Traditionally appointed by the Government of the day. Most senior ones used to be appointed by the PM after consultation with the Lord Chancellor- dangers of this such as nepotism and people not chosen on judicial merit but partianship.

New arrangements were made by the Lord Chancellor mid 2003 and included in the CRA 2005

A Judicial Appointments Commission examines the way in which appointments are made. It puts forward nominations and there are clear restrictions on the power of the Lord Chancellor to reject them

For the Supreme Court, an Admissions Commission puts forward only one name to the Lord Chancellor. They can accept this nomination or reject it, but can't but forward any other suggestions.

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Type of People selected as judges

  • Normally middle aged
  • Normally male
  • Born into the professional middle class
  • Normally Oxbridge educated
  • Wealthy
  • Conservative in thinking
  • Said to be out touch with the lives of ordinary people
  • Overwhemingly white,male, middle aged and upper middle class
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Security of Tenure

Once installed in office, they usually retain their position subject to good conduct

Should not be liable to removal on whim of the political parties or individuals

Appointed for life

Serve till time of retirement and very hard to remove

Those in superior courts can only be dismissed on grounds of misconduct- can only be done after a vote of both houses in Parliament

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Judicial neutrality

By convention, judges are above and beyond politics: apolitical-they determine but do not make law

This is open to criticism. Judges do not just administer law in a passive way, there is much potential for them to make law as they interpret it, a process known as judicial activitism

Judicial activitism: The idea that courts should be be partners in forming public policy

Judges are expected to be impartial and not open to political influence or pressure

Kilmuir guidelines 1955- principles set out by the Lord Chancellor that restricted the freedom of judges to speak out on matters of public policy. Guidelines have now been relaxed slightly and judges can give interviews.

Relationship isn't as clear cut as independent judiciary may suggest- some holders of judicial office also have some political office- eg. the Lord Chancellor, Attorney General and Solicitor General

Judges may also find themselves caught up in a political controversy- being asked to head up enquiries etc.

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Are judges really neutral?

  • Doubt over whether judges really can be political neutral, everybody will have their own political leanings
  • The left has been critical of judges with their mainly conservative backgrounds. They feel as though their party has suffered as a result of decisions made on the bench, mainly in the area of industrial relations
  • It can be said that judgement in court can be as a result of the judges background, attitudes and method of selection,in others words they are biased
  • Labour feels the conservative nature of judges undermines their political neutrality
  • Griffiths 1997 argued that the backgrounds and attitudes of judges make them unsympathethic to and biased against minorities and opposed to ideas of social progress
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Judicial review

The process in which enable judges to be able to override the decisions of laws of democratically elected governments

Covers 3 main areas:

  • rulings on whether specific laws are constitutional
  • resolving civil liberties conflicts between state and citizen
  • resolving conflict between different institutions and levels of government

US has strong powers of judicial review- can strike down laws that are deemed unconstitutional

Weaker form in Britain enables the courts to modify the way in which public officials carry out their duties and allows them to nullify/cancel out decisions which are considered illegal/unconstitutional or unfairly reached

However, Parliament is still sovreign and CAN NOT overturn laws

Home Secetary Michael Howard made several important decisions which were declared unconstitutional

Judges can say whether Parliament  are acting "ultra vires"- outside of their powers 

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Judicial activism/restraint

  • Judicial activism describes the case in which judges and the courts take a broad and active view of their role as interpreters of the constitution and reviewers of executive and legislative action
  • Refers to the willingness of judges to venture beyond narrow legal decisions so as to influence the evolution of public policy
  • Judicial restraint, meanwhile, is the idea that courts should not seek to impose their views on other branches of government
  • Supporters of this favour a passive role for the courts which limit them to implementing legislative and executive intentions- judges should simply apply the law
  • Judicial intervention in public policy has increased in recent years
  • There has been an increase in the powers of judges and they are now far more willing to get involved in political areas
  • Striking down public policies can be seen as as them ventuing into an area reserved for elected representatives
  • The importance of judges has grown which is one of the most significant political developments and drags them into the political fray
  • The increasing use of judicial reviews has led to conflict between judges and ministers
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Judicial activism/restraint (continued)

  • The incorporation the HRA 1998 has also led to the politicsation of the judiciary as they are drawn into the political fray
  • Judges can also issue an Declaration of Incompatability on areas or pieces of legislation which aren't compatible with the HRA 1998
  • Although it is not binding, it can irrate ministers who feel judges are becoming too involved
  • Looks bad if government is trying to pass legislation that breaches Human Rights
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Have judges become too powerful?

Yes:

  • Unelected judges can step so boldly into political territory
  • Under British constitution, it is Parliament who is the protector of our main liberties, it is a sovereign body and its members alone should make the decision
  • Judges lack accountability and are seen as remote from present day reality
  • Politicians should be punished in the polling booth, not in the court room

No:

  • The divsion of the 3 branches of Government allow for a protection against potential tyranny
  • Judges are aware of how people voted in recent elections and are not completely immune from what goes on in society
  •  Their views command respect because of the high esteem they hold
  • Somebody has to react to the law and review it once it is place; an independent jury is an appropriate body to do this
  • PARLIAMENT is sovereign and can ignore a decision made in court
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Impact of the European Convention/HRA 1998

The European Convention sets out a list of freedoms such as freedom of expression,and the prohibition of discrimination

Each entitlement is then followed by a series of qualifications which lists the exceptions to it

The European Court of Human Rights in Strasbourg has the task of interpreting the convention in a particular case

Via the HRA 1998, the European Convention was incoroporated into British law

The HRA 1998 became operative in the UK from 2000

Provides the first written statement of the rights and obligations of British citizens

It incoroporated most, but not all, the European Convention into UK law

Allows British people to use the convention as a means of securing justice in British courts

The HRA does tend to tilt the balance of the constitution towards the judges

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Separation of Powers

The idea that the 3 branches of government (Executive, Legislative and Judiciary) are separate from each other

The CRA 2005 which created the Supreme Court (2009), has gone some way to making the judiciary indpendent (taking them out of the Lords)

In Britain we have fusion powers. The US has separation of powers.

The separation of powers is the doctrine which says that power should be divided between the three branches of government to prevent the undue concentration of power in any one area

In the UK, the Executive is chosen from and accountable to the legislature- example of fusion of powers (to prevent this, we could have separate elections for PM, but then they would a President)

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Comments

Old Sir

A useful set of cards, by providing a concise overview of the UK judiciary. Students should beware of accepting that most judges 'are Oxbridge educated' (card 6). The majority certainly will have attended 'selecting' universities and many will have been privately educated. Nevertheless these cards raise the main issues and will provide a good starting-point for the gathering of examples and case studies to illustrate discussion of the role of the judiciary.

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