is the judiciary too powerful or not powerful enough (june 2013)

Unit 2: Governing the UKREVISaION SESSIONS (June 2013)

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Date Content

Monday 15th April Constitution

Is it accurate to say that ‘The UK constitution is no longer fit

for purpose’?

Monday 22nd April Parliament

How effective is parliament in checking executive power?

Monday 29th April Prime Minister & Cabinet

To what extent does the prime minister dominate the political

system in the UK?

Monday 6th May **BANK HOLIDAY**

Monday 13th May Judges & Civil Liberties

Is the judiciary too powerful, or is it not powerful enough?

Monday 20th May EXAM SKILLS & TECHNIQUE

REVISION SESSIONS (June 2013)




Question Analysis

What is the examiner asking you to do?

Judgement needed: Sliding scale – too powerful and not powerful enough are both negative and criticise judiciary – can opt for judiciary is powerful enough to fulfil purpose – positive approach

Weak Judiciary: Independence & neutrality questioned/threatenedCan not check parliament/PM effectivelyDo not protect rights and civil libertiesUK judiciary vs EU law? (weaken or strengthen?)

Over Powerful Judiciary: Independence & neutrality???Restricts PM/parliament too muchProtects civil liberties at expense of govt/national security?UK judiciary vs EU law – too powerful with EU backing?

40 mark question: Remember you need an introduction, 3-4 developed points and a conclusion.Plan out your answer in bullet points before writing.



Recap: The Legal and Constitutional Environment of the Judiciary

Sovereignty of Parliament• Parliament is the ultimate

source of political power• The Judiciary have to enforce

Parliamentary law, but they can suggest changes

The Rule of Law• All citizens are equal under

the rule of law• Everyone is entitled to a fair

trial

Judicial Precedent• Interpretation of a law by one

judge then has to be followed in future

• Precedent can be overruled by any higher judge

Primacy of EU law• EU law takes precedent over

domestic law where our Parliament has given the EU jurisdiction

• British courts must enforce EU law



Judicial Review

“a court's authority to examine an executive or legislative act and to invalidate that act if it is contrary to constitutional principles”

Judicial Review is an important way in which Judges can check the powers of public bodies and the government.

Why is it important?

This is a very controversial power because judges have the power to overrule elected politicians.

Is this always a good thing?



Focus: What powers does the judiciary have and how are these powers constrained?

Powers and role of the judiciary may include the following :

• The Human Rights Act has bestowed great powers on the judiciary.

• The use and effectiveness of judicial review has grown.

• There have been a growing number of examples of the judiciary thwarting government, for example, Belmarsh, cases on asylum seekers, issues of sentencing etc.

• The growing independence of the judiciary has been significant.



Focus: What powers does the judiciary have and how are these powers constrained?

Limits to judicial power can include the following:

• Parliamentary sovereignty means the government can overrule the judiciary.

• The judiciary cannot make judgments beyond the jurisdiction of the law even in the interests of natural justice.

• The judiciary has no power to review legislation critically unless a judicial review is claimed.



Focus: How powerful is the judiciary in checking the executive?

The main examples of effective controls are:

• the practice of judicial review to examine government decisions and actions

• other than with Westminster parliamentary legislation, judges can set aside actions by public bodies which contravene the European Convention on Human Rights or which contravene EU law

• opinions expressed about legislation which may be considered to be in contradiction of rights and freedoms under common law or the Human Rights Act

• ultra vires cases prevent ministers and public bodies exceeding their legitimate powers

• the judiciary upholds the principles of the rule of law

• today, more than ever, senior judges have become involved in debates on law and order/justice policy both in and out of Parliament.



How effectively does the judiciary check the executive and legislature?

Judicial Review – can review action taken by ministers under delegated

legislation BUT cannot review Primary Legislation (Acts of Parliament)

The Human Rights Act – can use the

HRA to judge that a particular action contravenes the

Human Rights of the individual/s involved

Effective Control

Involvement in debate – Judges can become involved in debates

about controversial issues (although this does have an impact on neutrality issues

Rule of Law – Judges

uphold the Rule of Law



Ineffective Control

The Government can derogate from the terms of the Human Rights Act

Judges can’t be proactive – they have

to wait for cases to come to them

Parliamentary Sovereignty limits the power of judges to control

Parliament - Judges cannot overturn any Act of Parliament

either by Judicial Review or under the HRA

Although the Judiciary can overturn something on Judicial

Review - Parliament can then decide to legislate to ensure that

that thing still happens

How effectively does the judiciary check the executive and legislature?

Government can still pass

legislation that contravenes

HRA



Focus: How powerful is the judiciary in checking the executive?

Limitations on such control include:

• the fact that judges cannot overturn UK parliamentary legislation as Parliament retains sovereignty

• where decisions by ministers and public bodies are set aside by the courts, government may pass primary legislation which allows such policies and decisions,

• eg the Belmarsh case or the Davis case ruling, allowing anonymous witness testimony

• judges cannot be pro-active – they must wait for appeals to be brought before them.

• Despite recent examples of judges becoming involved in public debate, they are expected to maintain a low public profile and maintain political neutrality.



Civil Liberties

• Civil Liberties - the Freedoms/Rights that belong to individuals - they protect the individual from the power of the state (generally described as negative rights - eg: right for state NOT to intervene unless the law prevents a certain activity)

• Many overlap with Human Rights which belong to all individuals

Focus: How powerful is the judiciary in protecting rights and freedoms?



Protection of Civil Liberties

• Maintaining Civil Liberties is a key feature of a Liberal Democracy

• Civil Liberties establish the relationship between the State and the individual and protect the citizen from Government interference

• In the UK, protection of Civil Liberties has traditionally been seen as weak in comparison to other countries such as France and the USA (because unlike those countries, we do not have a Bill of Rights)

• Before the Human Rights Act 1998 - UK relied on Common Law belief that “everything is permitted unless it is prohibited” (very difficult in practice to uphold)

• Also - limited ways of seeking redress if you thought your civil liberties had been taken away - contact MP/Councillor/Ombudsman




Civil Liberties deemed under threat in the 1990s

• 1990s = growing concern that Civil Liberties were under serious threat

• This was due to a number of developments which amounted to a growth in the power of the State eg:

• Increases in Police power - Police and Criminal Evidence Act (PACE) 1984 and Criminal Justice and Public Order Act 1994

• 1980s legislation limiting Trade Union activity

• Increasing amounts of information about individual citizens being held by the State/agencies (eg: NHS)/DNA databases/Surveillance cameras

• threats to trial by Jury

• Issues relating to treatment of terror suspects/asylum seekers

• General fear that executive power was growing and Parliament was becoming less effective at limiting this growth




How are our civil liberties protected?

• In recent years the role of protecting Civil Liberties has increasingly fallen to the Courts/Judiciary due to:

The wider use of Judicial Review

The enactment of the Human Rights Act 1998

• UK citizens can now use: MPs/The Courts/Tribunals/Ombudsmen/Judicial Review/European Court of Human Rights




Protection of Civil Liberties (post 1998)

• Since 1998 Judges have been able to protect Civil Liberties by way of Judicial Review, The Human Rights Act and use of their discretion (refusing to proceed with a trial if decide that the defendant will be denied Natural Justice - e.g.: Matrix Churchill case 1992)

• However the growth of the ‘Human Rights Culture’ and ensuing willingness of Judges to challenge ministers (see Phillips), the impact of the HRA which has widened the ability of Judges to intervene in politics and a perceived trend for govts to expand their own powers has led to conflict between senior judges and the executive

• Despite major advances in protection of individual rights since 1997 which have been warmly welcomed by campaigning groups such as Liberty (eg: HRA, FOIA) - there are still critics who point to a civil liberties ‘blind spot’



• This is reflected in the growth of legislation that expands to power of the state and weakens civil liberties/human rights and constitutes, some would say, a drift towards ‘authoritarianism’

• Remember it is too simplistic to merely discuss clashes between the executive and the judiciary - we must also acknowledge that the debate centres around competing freedoms/rights not whether rights are being eroded by the govt. per se

• For example groups such as Liberty see the right to liberty/freedom from detention without trial as a basic feature of a Liberal democracy (an idea reflected in the Law Lords decision to release the Belmarsh suspects in 2004)

• However, the govt. would argue they are defending rights by measures such as control orders, detention etc

• rights are relative and civil liberties must be balanced against civil obligations/duties

Protection of Civil Liberties (post 1998)

How effectively does the judiciary protect civil liberties in the UK?

Effective Control

Judicial ReviewBy preserving

judicial independence

Judges uphold European

Convention of Human Rights and

all statutory rights of citizens

The Judiciary can make judgements under the Human

Rights Act to protect civil liberties

Judges can express their views in the

media and stimulate debate on civil liberties issues

Under the rule of law all people should be

treated equally – the

role of judges is to uphold the

Rule of Law



How effectively does the judiciary protect civil liberties in the UK?

Ineffective Control

The Government still has some control over the judiciary

Judges can’t be proactive – they have

to wait for cases to come to them

The lack of a codified and entrenched constitution makes

the interpretation of civil liberties difficult and open to controversy

The Human Rights Act is not binding on parliament –

Parliament can pass an Act that goes against the HRA as long as it makes a declaration saying that it

is doing so.




• By guaranteeing the rule of law, i.e. ensuring equal treatment under the law, ensuring fair trials and enforcing law against government itself. However, this is vulnerable to parliamentary erosion (e.g reduction of jury trials, double jeopardy etc.).

• By declaring and enforcing common law rights and freedoms. However common law can be set aside by new statute law.

• By enforcing the European Convention on Human rights. The limitation is that it cannot be enforced against primary Westminster legislation.

• By enforcing European legislation on economic and social rights. This is largely unlimited, though it may be noted that UK courts must abide by precedents from the European Court of Justice.




• By conducting judicial reviews where citizens or groups may feel they have been the victims of arbitrary power, unequal treatment, injustice etc. This is increasingly effective, though government may grant itself powers with the sanction of parliament.

• Some judges have adopted a high profile role in ‘championing’ rights and freedoms in public forums (e.g. Lords Woolf, Bingham and similar). Such judges have authority and influence. However, their political role remains legally circumscribed.

• Arguably the judiciary has become more independent since 2005 so judges may feel freer to challenge executive power




Conclusion

The judiciary in the UK is..

Too powerful in all respects

Too powerful in some respects

Strikes a good balance in terms of the power it exercises

Not powerful enough in some respects

Not powerful enough in all respects

because...

REMEMBER TO JUSTIFY YOUR ARGUMENT



is the judiciary too powerful or not powerful enough (june 2013)

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