as the judiciary

Politics – The Judiciary

What are the functions of the judiciary?

• The role of the judiciary is to uphold the law• Judges must also interpret the law• The judiciary is (in theory) independent and neutral – which

allows judges to perform their designated role in an effective and fair manner

• In practise, the judiciary may also perform a ‘political’ role (e.g. the Law Lords debate issues in the legislature, and a judge can deem any bill incompatible with the European Convention of Human Rights)


What is meant by judicial independence?

• “the ability of judges to resist political pressure from the other two branches of government”

• Judicial independence is maintained by the fact that judges cannot be easily removed by the government

• In addition, the government does not appoint (or train) judges

• Judges are appointed on basis of ability, rather than their political affiliation. They are also unelected – which frees them from any electoral constraints


Judicial independence continued …

• By convention, judges are free from undue political interference. As such, politicians should not criticise any judge. However in recent years, both Labour and Tory Home Secretaries have criticised judges who pass sentences considered to be “too lenient”

• The PM has also criticised the judicial system for failing to protect the law-abiding majority

• It is also claimed that the Lord Chancellor and Attorney General have been pressurised by the Government over certain issues, such as the reluctance to publish legal advice relating to the Iraq war


What is meant by judicial neutrality?

• Judicial neutrality implies that everyone is “equal before the law”, and is maintained by three factors;

• (1) A judge should avoid any political or personal bias• (2) A judge must not benefit personally from the case in

question• (3) Decisions must be taken on a fair, and impartial, basis


Are judges neutral?

• In practise, the social background of judges can affect their judgment (e.g. judges have been accused of dealing with certain groups in a negative way, such as animal rights protestors)

• Political considerations may also affect the position taken by a judge. For example in the Clive Ponting case in the mid-1980s, the judge took the side of the government

• The judiciary has also become more ‘liberal’ in recent years, which has to some degree affected judgements made in cases concerning terrorism, and asylum


What are civil liberties?

• “Those rights to which we are entitled to as citizens of a state.” Civil liberties are a key component of any liberal democracy

• Examples include the right to free speech, and the freedom of association

• From 1997 to 2001 civil liberties were strengthened by;– The Human Rights Act– The Freedom of Information Act


Recent developments

• However since 2001, civil liberties have been eroded due to the government’s attempts to combat the threat of terrorism, and the high number of CCTV cameras in the UK (1 for every 14 citizens)

• Unlike the United States, civil liberties are not laid down in a codified constitution. The first 10 amendments to the US Constitution relate to civil liberties, and are referred to as the ‘Bill of Rights’


How can judges defend civil liberties?

• Via judicial review, if a minister acts ultra vires (e.g. the illegal deportation of asylum seekers)

• Judges interpret the law, which can at times result in a judge upholding civil liberties. For example in July 2005, the power of the police to order youths back home was quashed by a decision made in the courts

• A judge can often head a public inquiry, which can on occasions focus upon the issue of civil liberties

• The judiciary can also rule on an important test case (e.g. the Bosman ruling provides footballers with greater freedom from their clubs)


Recent developments

• Since the Human Rights Act was passed, a judge can declare a bill to have contravened the European Convention of Human Rights (ECHR)

• In recent years, judges have become more willing to defend civil liberties due to the emergence of a more ‘liberal’ judiciary

• The judiciary remains the principal defence against the erosion of citizen’s rights in the United Kingdom. Elected representatives, the media, administrative tribunals and pressure groups also play a role


What limits are there upon the power of the judiciary?

• The law itself. In the overwhelming majority of cases, all a judge can do is interpret the law as it stands. Judges also have to follow judicial precedent where one exists. However, in a very small number of cases, a judge can set a precedent themselves

• EU law, which supersedes UK law (e.g. the Factortame case)• Parliament, which can simply pass or repeal an existing law if they are

unsatisfied with a court’s decision• Judges are also constrained by judicial neutrality, which prevents them

taking an active role in party politics. Whilst the Law Lords can debate issues in Parliament, and judges often head independent inquiries (e.g. the Hutton inquiry); the power of the judiciary is relatively weak in comparison to the other two branches of government


What is meant by open government?

• Open government is an important concept in any democracy

• According to the principle of open government, the public have the right to access information held by the government. As such, open government actually strengthens civil liberties. For example, the public can access Cabinet papers from 30 years ago under the ‘30 year rule’

• Britain has always had a “culture of secrecy”, in contrast to other liberal democracies such as the United States. For example in the UK, all ministers take an oath of secrecy


Developments since 1997

• Open government has been enhanced since 1997 due to the Human Rights Act and the Freedom of Information Act, but many Acts of Parliament restrict access to information (e.g. the Official Secrets Act)

• The Liberal Democrats and the Conservatives are in favour of more open government

• The pressure group Liberty also campaigns in favour of greater openness

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