This topic overlaps with Constitutional reform- see Human
Rights Act and the Constitutional Reform Act 2005.
There will be questions on the court structure or on different
types of law such as civil and criminal, but you should be aware of
civil and criminal law and the methods by which citizens can seek
redress.
You should be aware that there is a hierarchy of courts with
ultimate appeal laying in two international courts- European Court
of Human Rights and the European Court of Justice.
3. Key principles
Parliamentary sovereignty- judges cannot normally override an
act of Parliament, but as in case of the Belmarsh terror detainees
declare that an act is incompatible with existing legislation-
Human Rights Act. However, as confirmed by the ECJ ruling on the
Factortame case1991, the British courts have an obligation to
challenge the legality of any act which contravenes EU law (
primacy of EU law ).
Rule of law- law applies equally to all.
Judicial precedent- When a judge makes an interpretation of the
law, he sets a precedent which all courts must follow in similar
cases although a higher court can overturn this.
4. Independence
Security of tenure and salary- can only be removed if guilty of
conduct incompatible with being a judge.
Contempt of Court- it is considered so if any servant of the
government attempts to interfere in a case or comment on it.
Since 2005 a Judicial Appointments Commission established to
appoint most judges.
All senior judges have had lengthy careers as courtroom
lawyers.
5. Are judges neutral
Yes
Increasing number of judgements in 1990s onwards were against
government whether Conservative or Labour.
Human Rights Act has increased the ability of judges to
challenge the power of the state- both Labour and Conservative
politicians have criticised judges.
No
Middle, upper class and private school, Oxbridge and white
male.
John Griffith in The Politics of the Judiciary 1977 argued that
by profession (lawyers) and social background, judges bound to
favour the state and hence likely to be conservative rather than
liberal.
The more recent evidence suggesting that judges are more
willing to uphold civil rights suggests they are not neutral in
that they are taking a pro rights stance.
6. Political role of the judiciary
Dispensing justice- why? Trials should be conducted in a way
which ensures all parties are given a fair hearing and law applied
in spirit intended.
Interpretation- why? Judges have to decide what the law means,
in cases involving powers of government/ agencies and rights of
citizens this can be of public interest.
Case Law- why? This applies to where a judge sets a precedent
in terms of interpretation for other courts to follow in similar
circumstances. This is judge made rather than Parliament made
law.
Common Law-why? Rules of behaviour developed solely by
tradition- applies to inheritance, commercial practices and rights.
Occasionally there may be no relevant statute and the judge has to
decide what the law is.
Judicial Review- The courts review decisions made by the state
or public body and decide if that body has exceeded its legal
powers (ultra vires).
Public inquiries- why? Where judges are called upon to head an
inquiry into a matter of widespread public concern.
Sentencing- why? From mid 1990s growing conflict between judges
and successive home secretaries concerning minimum tariffs.
External jurisdiction- In matters relating to UK relationship
with the European Union, the European Court of Justice remains the
highest appeal court. Recently, the ECJ in 2011 ruled against
preferential insurance deals made on the basis of gender such as
Sheila's Wheels. The European Court of Human Rights remains the
highest court of appeal concerning the Human Rights Act- ruled
against arbitrary stop and search and blanket ban on prisoner
voting rights both of which challenged by the government.
7. Why has there been growing concern over the issue of civil
liberties in the UK?
Increase in police powers, for example the criminal justice
acts in 1980s/90s and the removal of the right to silence when
questioned by police.
Growing surveillance culture and the growth of information
stored on databases.
Growing fear that ability of parliament to control the
executive was weakening, hence the gradual erosion of civil
liberties under successive criminal justice legislation.
Perception that the government was too secretive- UK was
looking out of step with rest of the democratic world.
8. How has the ability of citizens to protect their rights
increased?
Data Protection Act 1984 gave citizens right to see contents of
any computer file containing information about them.
Freedom of Information Act 2000 has been important- the FOA
meant that MPs could not prevent disclosure of their expenses 2009
and it has granted far greater individual access to official
information on them.
The Human Rights Act was the first formal codification of civil
rights in UK law.
9. Over what issues have judges come into conflict with the
Executive?
Judges have resisted attempts to bring about minimum sentences
for certain categories of crime as an infringement on their freedom
over sentencing. 2010 a Sentencing Council was introduced to set
sentencing guidelines for judges.
Many senior judges have criticised the erosion of civil
liberties brought about by successive anti terrorism legislation.
The 2001 Anti terrorism act which introduced indefinite detention
of foreign terror suspects and also the 2003 Criminal Justice Act
which introduced double jeopardy were both criticised.
The increased tendency of judges to enter into public debate
criticising government erosion o rights via its criminal justice
legislation has led to criticism from senior politicians such as
Prime Minister Blair, leader of opposition Cameron and Labour home
secretaries.
10. Why was the judiciary reformed 2005?
The post of Lord Chancellor was a link between the three arms
of government- a senior cabinet Post, Speaker of the House of Lords
and advised Prime Minister on senior judicial appointments.
As senior judges appointed by Prime Minister and Lord
Chancellor, no guarantee that appointments be free from political
influence.
The Highest appeal court- The House of Lords made up of judges
who also members of the legislature which had a place in making of
the law.
In modern democracies there is the established principle that
the judiciary which controls arbitrary government and maintains
rule of law should be separate from other two arms of
government.
11. The 2005 Act
The legal position of the Lord Chancellor removed and the Lord
Chief Justice now head of the judiciary.
A new post, Secretary of State for Constitutional Affairs
established to advise on constitutional matters- held by Lord
Chancellor Lord Falconer, the post was abolished on his retirement
from Cabinet 2007. A new post Secretary of State for Justice
created and thus far the first holder- Jack Straw and the current
incumbent Ken Clarke are both Lord Chancellors.
Judicial Appointments Commission established to advise on
appointments based on competitive interviews and application
forms.
Creation of new Supreme Court in the guildhall away from the
House of Lords, although the current incumbents retain sitting
rights in the House of Lords.
12. European Courts
European Court of Justice
Arbitrates between member states and between member states and
the EU.
It can declare that national law is incompatible with EU law
and therefore strike down the offending law.
European Court of Human Rights
Predates the ECJ
It upholds the European Convention of Human Rights (1948)
Since 1965, UK government allowed its nationals to take cases
against the government to the ECHR.
Under treaty obligations, the government is obliged to accept
ECHR rulings once it has lost the appeal.
The principle of derogation, allows for governments to opt out
of aspects of the ECHR in the interests of national security for
example.