Flashcards in Unit 8 Deck (30)
What are the roles that the judiciary in the UK plays?
- Dispensing justice
- Interpretation of the law and establishing case law
- Declaring and evolving common law.
- Conducting judicial reviews.
- Holding public inquiries
Elaborate on the court's interpretation of the law, and what case law means.
Judges only have to interpret a law when a case arises. If they have a new interpretation, they set a new judicial precedent, unless there's already a precedent to follow.
If the meaning of a gov law is unclear, judges have to interpret the law and establish case law (filling in the gaps).
What can Parliament do about common law (which is based on judicial precedents)?
They can override it
What do courts have to ensure when dispensing justice?
Give examples of how judges rule in terms of common law.
That all citizens should be treated equally should they challenge Westminster's laws (formal equality).
Judges rule on murder and manslaughter based on how precious judges have ruled rather than Parliament (common law).
Give examples of a judicial review.
What may the Courts use to review the conducts of government / public bodies?
R v Secretary of State for Exiting the European Union (2016). (To ensure gov didn't overstep powers).
They may use the Human Rights Act (1998) to rule in light of the ECHR.
What might the courts rule for a person after judicial review?
What else can the courts use to enhance their judicial review?
Courts may rule that compensation is needed for the citizen who has been mistreated by the public body / gov.
The Freedom of Info Act (2005) can allow them to scrutinise official documents in their review
Give 2 examples of public inquiries.
1. Lord Hutton held hearings into the apparent suicide of David Kelly (a civil servant who had reported on Iraq's nuclear potential in 2003).
2. Lord Leveson investigated allegations of journalists illegally hacking into citizen's phones for leads (2011-12).
Give 3 reasons for why it's important to have an independent judiciary.
- Judges are the watchdogs of gov + Parliament.
- If gov wants to harm minority groups for its own gain, only an independent judiciary could stop this.
- They aren't influenced by short-term trends (eg civil liberties are shielded in times of terrorism).
Where is the ECJ based? What does it deal with?
Where is the ECHR based? What does it deal with?
European Court of Justice is based in Luxembourg and deals with EU laws.
European Court of Human Rights is based in Strasbourg, is not to do with the EU and enforces the European Convention on Human Rights.
What 2 things help keep a judiciary independent? Elaborate on IA.
Independent Appointments; Training and experience.
Independent appointments: Most judges appointed by an independent JAC (Judicial a appointments Commission), created in 2005. Made up of a committee of senior judges. Little to no political experience.
Elaborate on training and experience in enhancing judicial independence.
What have been the consequences of this?
All senior judges have been lawyers - know that cases have to be judged based on law only.
Indeed, senior judges have made judgements against Labour + Tory gov interests. Esp true since the HRA (2000).
What 2 things back up that we have an independent judiciary?
Constitutional Reform Act of 2005 removed most threats to a judge's independence.
Judges cannot be removed as a result of their decisions - security of tenure.
What 2 things back up the notion that judges are not independent?
Their neutrality can be challenged on the basis that they are mostly white males from comfortable backgrounds (Lord Wilson + Lord Reed currently to name a few).(title of Lord is only customary).
Conservative politicians claim that judges favour rights over state security (eg the Belmarsh Case).
What is a caveat to the notion of a predominantly narrow social backgrounds for judges?
President of the Supreme Court = Lady Hale. 2 other women added in 2018 + 2017 - Lady Arden and Lady Black.
What is a recent example of the courts holding government to task? (Very recently).
How did the government respond?
Mothers succeeded in a judicial review against gov Department for Work and Pensions. Argued that Universal Credit monthly payments varied enormously.
When Rudd heard the news (Work+Pensions secretary' said "I will have to consider it".
What can the Court do to counter government actions? Parliament's?
Declare 'ultra vires' (beyond their legal powers). Such actions are dropped swiftly.
Can make 'declarations of incompatibility', recommending Parliament to change a law.
What can Parliament do to counter a Court judgement / interpretation?
Can be overturned by fresh Parliamentary legislation that must be adhered to in future cases.
What ultra vires case had been dismissed?
Trump International Golf Club v Scottish Ministers (2015).
11 wind turbines built near Trump's golf resort in Scotland. Argued Scottish ministers didn't have the power to approve this. His case was dismissed unanimously in 2015.
What ultra vires case has been upheld?
R v Secretary of State for the Home Department, exp Simms (1999).
Law Lords ruled a home office ban on prisoners talking to journalists was unlawful and against human rights. Took appeals from Ian Simms and Michael O Brien, 2 prisoners.
What must judges look back on when interpreting an Act of Parliament?
What's an example of a Courts ruling being overturned by fresh Parliamentary legislation?
The original Parliamentary proceedings.
In 2010, Court ruled that the government didn't have the power to freeze bank assets of terrorist suspects. Brown accepted judgement temporarily - but legislation (Terrorist Asset-Freezing Act of 2010) granted this power anyway, and the Court couldn't do anything about it.
Why do judges make declarations of incompatibility? What can Parliament do in response.
If an Act of Parliament clashes with the ECHR. Advises Parliament to think again.
Up to Parliament whether they make it compatible with the ECHR.
What was the Belmarsh Case all about?
How did the Court respond?
9 suspected terrorists had been held for several years without trial in Belmarsh Prison, under the Crime and Security Act of 2001.
2004 - DOI - law incompatible.
What did the government do in response to the Court's declaration of Incompatibility over Belmarsh?
Why did they do this?
Released the prisoners. Detention for suspects reformed under the 'Prevention of Terrorism Act' (2005).
Want to keep UK's reputation for respecting human rights.
What normally happens when the government is confronted with a DOI?
They're rare - only 3 happened between 2010-2015. But, in each case Parliament has amended the law to solve conflict with ECHR.
What are the two most convincing claims the executive can make to justify superiority?
What are the two most convincing claims the judiciary can make to justify influence?
Have been given a mandate by the people + are already held to account by Parliament.
Why was both gov + Prince Charles embarrassed in 2015 after judicial review?
Prince Charles had written letters to government, but through judicial review declared that the letters should be published (Evans v Attorney General 2015).
When did the gov flex parliamentary sovereignty (and why?).
2015 - gov refused to respond to the ECourtHR in 'NJDB v UK' (2015).
NJDB appealed against a decision to remove child custody - ECourtHR said this went against Article 6 - but gov ignored this.
How does Parliament arguably control the executive? (6 ways)
Votes of no confidence -Callaghan 1979, 311-310.
PMQs and QMTs.
Finding gov in contempt, eg in December 2018.
Amendments by the PBCs (though whips do decide + gov has majority).
Lords can veto secondary legislation
Military convention + committees.
How does the executive control Parliament? (8 ways).
Gov majorities (eg Iraq); time tabling debates, eg PM timetabled debated on deal 12thMarch, no deal 13th March + extending Article 50 14tg March,
Public Bill Commmittees.
Salisbury convention; Parliament Acts 1911+49.
PM patronage (eg Lords under May); gov whips; FTPA (2011).