- Created by: Rosie
- Created on: 11-04-12 09:43
Unfinished but feel free to use the complete topics as shown below.
Topics within "The Judiciary"
Introduction to the judiciary [complete]
a) Judicial 'independence/neutrality' [complete]
b) Judicial Review [complete]
c) Judicial restraint and judicial inquiries [complete]
d) Can/should judges be 'representative'? [complete]
e) A Bill of Rights? [complete]
f) Civil Rights
g) Human Rights
h) Inalienable Rights [complete]
i) The Rule of Law
j) Separation of powers
k) Judicial reform?
Past Questions on Judiciary [complete]
1) Intro - What is 'the judiciary' and what do it 'do' within the British Constitution?
In simple terms, the judiciary is the third 'arm' of any political system (beyond executive and legislature), whether democratic or totalitarian.
Within the British Constitution, the executive (PM and cabinet) makes political decisions and operates within the legislature (Parliament) to enact legislation or laws. The judiciary exists to interpret and apply 'the law' as it is defined in Acts of Parliament (Statute Law) as well as through Common Law judgements.
The role of judges:
- Preside over court proceedings
In this role, judges make sure that the rules of court are properly followed by both sides of a case and act as a 'referee'. Their job is to ensure a 'fair trial' and serve as a source of knowledge e.g in giving advice to juries in criminal cases on points of law and possibly directing a verdict.
- Interpret and apply the law
This, in most cases, makes sure that they interpret statutes laid down by Parliament. Though judges effectively apply 'the letter of the law' they are also able to exercise a measure of discretion in the way that they interpret statutes, however this can lead to conflicting interpretations by judges and ministers.
- "Make" law in certain cases
In a sense, all law is 'judge-made' law because laws ultimately mean what the judges say they mean. But some laws are more 'judge-made' than others. Whereas judges can only interpret Acts of Parliament, they effectively determine the nature of Common Law. Common law is built up on the basis of judicial precedent. This happens as judges in one case accept judgements in earlier similar cases as binding, through what is known as 'case law'. Such law is therefore, in effect, made up of a collection of decision made by judges.
- Decide sentencing in criminal cases
This is a further important area of discretion, as judges have traditionally had a free hand in deciding what sentences to hand out. Nevertheless, this role has been reduced in recent years, as a result of the wider use of minimum or mandatory sentences. Some judges have argued, in turn, that mandatory sentences allow politicians to encroach on the role of the judiciary.
- Chair public enquiries and commissions
Judges are used for this purpose because of their reputation for being independent and impartial. Public enquiries are also run like court proceedings and may even have a quasi-judicial character. Such a role has led to criticism; in…