Role of the Judiciary

Learning Objectives

• To understand the history of the judiciary

• To identify the structure of the judiciary in the UK

• To explain the role of the judges and the judiciary

• To understand the UK judiciary’s relationship with Europe

• To understand the role of the European Courts

The History of the JudiciaryIn order to understand the structure and role

of the judiciary today, it is important to appreciate how the UK judicial system has

evolved.• Read the hand out “The History of the

Judiciary”.• The text has no paragraphs. You need to

break up the text using the symbol (//) and write appropriate sub-headings for each paragraph.

Keywords• Eyre – noun (Old English)

- any of the circuit courts held in each shire from 1176 until the late 13th century- justices in eyre the justices travelling on circuit and presiding over such courts

Why am I doing this?

This type of activity tests

your understanding

of the structure of the text and

the subject specific

components of the material.

The Nature of the Judiciary• The judiciary is one of

the 3 branches of government.

• All officials are concerned with the dispensation of justice.

• Judges are involved directly with law making and politics.

• As well as their legal role, institutions also have a political role that often overlaps.

Political Role

Dispensing justice

Ensuring that the law is applied fairly and equally to all

citizens

Interpretation

Interpreting the meaning of law where there is

conflict

Creating case law

How existing laws are applied to a particular case

Declaring common law

Rules of behaviourdeveloped through

tradition rather than law

Judicial review

The principle that citizens can appeal

against the government to

assert their rights

Public inquiries

Into matters of widespread public

concern

External jurisdiction

Constraints by legal systems of the EU

and devolved powers

Sentencing issues

Deciding the punishments that

are appropriate and proportional to the

crime

The JudgesThe most senior

judges are the twelve members of the Supreme Court .

The attraction in becoming a judge lies

only partially in the salary.

They are eminent lawyers, normally drawn from the ranks of the Court of

Appeal.

The male-oriented nature of the judiciary has led to claims that

judges are insufficiently sensitive

in cases involving women.

Rather, the attraction lies in the status that attaches to holding a position at the top of

one’s profession.

One is that judges are out of touch with society itself.

This exclusivity has been attacked for

having unfortunate consequences.

Judges thus form a socially and

professionally exclusive or near-

exclusive body.

The effect of gender and social exclusivity has been a cause of concern among jurists as well as ministers.

The background of the judges has also led to

allegations of in-built bias.

The Background of JudgesTotal number of judges in

the UK = 3621

• Male = 2742• Female = 879 [24.3%]• White 2813• Asian = 73• Black = 30• Mixed = 36• Other = 33• Total BME = 172 [4.8%]• Under 40 = 91 [1.1%]• 40-49yrs old = 670• 50-59yrsold = 1326• 60+ = 1534 [42%]

Judges are…• …overwhelmingly male and

white • …mainly graduates of public

school and then graduated from Oxford or Cambridge

• …almost exclusively barristers Because of these factors there has been some attempt in recent years

to try and expand the type of people who are made judges.

What can you learn about judges from the statistics

opposite?

The Roles of Judges• Judges must define the meaning of the law.

• They interpret the law.

• This is in line with the separation of powers theory, which presumes that those who make the law should not be the same people as those who apply it.

• In practice however, it is not that simple - often it is difficult to see where interpreting the law ends and making law begins.

Preside over court proceedings

Interpret and Apply the law

In some cases - to Make Law

Decide on sentencing in criminal cases

To protect citizens from an overpowering state

Chair public inquiries and commissions

The Roles of JudgesPreside over court proceedings:

• A Judge is rather like umpire in court - they make sure both sides follow the rules for a fair trial

• They are a source of specialist knowledge - advising on points of law and procedure

Interpret and Apply the law:

• They interpret Parliamentary statutes

• In theory - they should apply ‘the letter of the law’ but in practice they have a measure of discretion in their interpretation = can lead to conflicting interpretations

In some cases - to Make Law:

• Laws ultimately mean what Judges say they mean - therefore in a sense all law is ‘judge made’ to an extent

• However, some law is more Judge made than others e.g. Judges determine the nature of Common Law which is built up on the basis of Judicial Precedent

Decide on sentencing in criminal cases:

• Judges have traditionally had a free hand in sentencing

• However, this has been reduced in recent years as a result of wider use of minimum or mandatory sentences

The Roles of JudgesChair public inquiries and commissions:

• Judges have this role because they are seen as impartial and independent

• PIs run like court proceedings

• E.g. McPherson Inquiry into killing of Stephen Lawrence (1999); Hutton Inquiry into suicide of David Kelly (2003)

To protect citizens from an overpowering state:

• This is a very important role of the Judiciary

• If citizens are unhappy with the actions of a govt or a public body (eg: NHS Trust) or feel that their Human Rights = violated - the courts can intervene

• Eg: Anne-Marie Rogers - 2006 Court of Appeal decision in her favour (campaigned to be treated with cancer drug Herceptin)

• HOWEVER - the courts cannot strike down legislation as unconstitutional because of the principle of Parliamentary Sovereignty

• They can call the govt. to account via Judicial Review - can decide that a dept/minister acted ‘ultra vires’ (beyond their powers)

• This means that their role can be political at times

Upper levels of the judiciary

High Court- hears some appeals from lower courts, civil disputes and judicial reviews

Court of Appeal (criminal division)

- Appeals from lower courts/high court

Court of Appeal (civil division)- Appeals from county courts/high court, including judicial reviews

Supreme Court- Appeals from 2 appeal courts

European Court of Human Rights (ECHR)

- Settle disputes about cases involving the European Convention on Human Rights (ECHR)

European Court of Justice (EU)

- settle disputes and legal interpretation concerning

EU law

Cases on appeal from lower courts

European Court of Human Rights (ECHR)BackgroundThe European Court of Human Rights is an international court set up in 1959. It rules on individual or State applications alleging violations of the civil and political rights set out in the European Convention on Human Rights. Since 1998 it has sat as a full-time court and individuals can apply to it directly.

European Convention on Human RightsThe European Convention on Human Rights is an international treaty under which the member States of the Council of Europe promise to secure fundamental civil and political rights, not only to their own citizens but also to everyone within their jurisdiction. The Convention, which was signed on 4 November 1950 in Rome, entered into force in 1953.

Guarantees and Prohibitions of the Convention on Human Rights

The Convention secures in particular: • the right to life, • the right to a fair hearing, • the right to respect for private and family life, • freedom of expression, • freedom of thought, conscience and religion and, • the protection of property. The Convention prohibits in particular: • torture and inhuman or degrading treatment or

punishment, • slavery and forced labour, • death penalty, • arbitrary and unlawful detention, and • discrimination in the enjoyment of the rights and

freedoms set out in the Convention.

European Court of Justice (ECJ)

BackgroundThe ECJ’s mission has been to ensure that "the law is observed" "in the interpretation and application" of the Treaties. It;• reviews the legality of the acts of the

institutions of the European Union,• ensures that the Member States

comply with obligations under the Treaties, and

• interprets European Union law at the request of the national courts and tribunals.

Judicial AuthorityThe Court thus constitutes the judicial authority of the European Union and, in cooperation with the courts and tribunals of the Member States, it ensures the uniform application and interpretation of European Union law.

Why do we need the ECJ?For• Without the ECJ there would be no way of enforcing the

obligations of the European Treaties. • It allows all European citizens and nations to have equal

rights in areas of ECJ jurisdiction. • Its rulings promote the process of EU integration and

protect benefits such as the free movement of goods. Against• Law is one of the most fundamental aspects of national

sovereignty and EU law should not be supreme over national law.

• The ECJ is a slow and cumbersome body that can hinder progress through the time it takes to deliberate cases.

• Imposing European standards on member states challenges a nation's traditional legal practices.

How is EU Law enforced in the UK?The 1972 European

Communities Act gave legal force not only to existing EC

law but also to future European laws.

Key Questions• What would happen when an Act of Parliament conflicts

with European law?• Do the courts have power to strike down or suspend Acts

of Parliament that appear to breach European law? • What implications does this have for parliamentary

sovereignty?

How is ECHR enforced in the UK?The ECHR was not fully incorporated into UK law until the Human

Rights Act 1998.

What does the Human Rights Act actually do?The human rights that are contained within this law are based on the articles of the European Convention on Human Rights. The Act ‘gives further effect’ to rights and freedoms guaranteed under the European Convention. What this actually means is that it does two things:Judges must read and give effect to legislation (other laws) in a way which is compatible with the Convention rights. It is unlawful for a public authority to act in a way which is incompatible with a Convention right.

Why does EU Law supersede UK law?

Case Details Why is this important?

Factortame(1990)

This case involved Spanish Fishermen operating in UK waters. The Thatcher Government introduced legislation to limit such fishing to UK companies.It was held in this case that a state is liable to compensate for breaches of Community Law and this involved Spanish Fishermen and the Merchant Shipping Act 1988.

This case emphasises that EU law is supreme over domestic laws.Essentially a nation’s domestic laws need to “set aside” if they conflict with European Union laws.

Factortame transformed the legal relationship between the European Union

and its Member States. By granting to individuals the right to sue their

governments for breaching EU law, even if the breach embodied in privacy legislation, the European Court of Justice has placed a

highly effective weapon in the hands of European citizens.

Should EU Law supersede UK law?For

• EU law prevents states choosing self-interest over agreed treaty provisions that benefit the entire Community.

• European law allows for greater judicial co-operation between member states in civil and criminal cases, which is important at a time of more cross-border crime.

• It helps to safeguard the agreed economic goals of the EU - like the free movement of goods.

Against

• The intrusion of European law into national judiciaries undermines national control of law making.

• EU law can make constitutional changes to the EU through legal interpretation and judicial precedent without the need for additional treaties.

How has membership of the EU affected sovereignty?

• ECA 1972:

– Any laws on trade/welfare/employment passed by EU automatically become law in UK.

– Parliament cannot overrule a EU Law once it has been passed by making a Statute against it.

• Factortame – gave English courts a new role - the right to set aside acts of Parliament and also demonstrated that in certain areas e.g. trade, welfare, employment law, the supreme authority was EU law in ECJ.

• However, veto remains in many key areas – the ones that go right to the heart of what it means to be a nation state.

• However, the way the EU was introduced into UK law makes it vulnerable to Parliamentary Sovereignty – a law can ultimately be passed to get take Britain out of the EU.

Homework

• Reading and Note Taking, p262-264

• The Role of Judges- What do judges do?