1. The judiciary

2. Key point

• 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.