judicary & the executive

8/6/2019 Judicary & the Executive

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The Judiciary and the Executive


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Specification Guidance

y The role of the judiciary

The promotion of the rule of law

y The importance of independence

How separate are judges from parliament and the governmenty The importance of neutrality

Do judges demonstrate any form of bias?


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Judges and civil liberties

y What are civil liberties and human rights?

y The introduction of and importance of the Human Rights Act

(HRA)

y The Judiciary and the EU

y The Judiciary and the European Convention of Human

Rights (ECHR)


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the extent to which judges can check

the power of the executive

How does conflict manifest itself?

1. Judicial Review

2. Public Inquiry3. Voices of concern


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Judicial Review

y We do not have a codified constitution so judges cannot

strike down any statutes passed by Parliament

y Normally even if judges disagree with the law they are

obliged to apply ity The HRA gave judges the power to verify legislation against

the remit of the HRA and if found to conflict then they send

it back to Parliament for fast track review a spell-check


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y Apart from this process under the HRA normal judicial

review consists in checking the actions of government

agencies (usually ministers) to ensure that the actions that

have been taken are based on legal grounds as specified by the

relevant statute

y If they have acted beyond the rules or scope of the original

statute they are said to have acted ultra vires

y

Here judges have become increasingly active and this role hasplaced them in direct conflict with the executive.


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Public Inquiry

Here the judiciary are asked by the government to investigate a

controversial area and provide an objective report.

1. Scott Inquiry Arms to Iraq

2. Phillips Inquiry The BSE crisis3. Macpherson Inquiry Institutional Racism

4. Hutton Inquiry The Death of David Kelly

5. Saville Inquiry Bloody Sunday


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Voices of Concern

Since the abandonment of the Kilmuir Rules in 1987 members

of the Judiciary are allowed to voice their concerns

surrounding contemporary issues. This freedom has allowed

them to openly criticise the government of the day and

petition for action.


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Judicial Voices

y Lord Taylor (LCJ) condemned the governments Criminal

Justice Act 1991 for Unit Fines.

y LordWoolf condemned David Blunkett for prison

overcrowdingy Lord Judge 2009 The government is obsessed with passing

too many laws, framed with too many words creating too

many crimes

y

Judge Richard Bray condemned the governmentsImmigration laws


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Judges and relations with the executive

1. 1979 1990 The Thatcher Years

2. 1990 - 1997 The Major Years

3. 1997 2010 New Labour


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1979 -1990 The Thatcher Years

Controversy not conflict

Case references

y Ponting

y Tisdall

y PeterWright SpycatcherThe government during these years passed a series of laws

which restricted the power of organised labour and the trade

unions. For the main the judiciary complied with this

legislation.


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1990 - 1997 The Major Years

Conflict emerges

Crime levels now become a major area of public opinion.

EU becomes a significant element of UK judicial control.

Michael Howard

y Sentencing Bulger casey Passage of Bill for minimum sentences

y Prisoners rights

We now see a huge rise in judicial activism.

Orchestrated by more frequent use of judicial review by

pressure groups


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1997 2010 New Labour

Conflict established

y Exponential rise in judicial review

y Increased constitutional legitimacy with the HRA, FOI Act

and creation of the Supreme Court.

yMajor battle lines remain with crime but now the conflict

between civil liberties and public safety is the main

battleground.


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Case history

Government defeats by the judiciary

y Compensation for prisoners not allowed drugs in jail 3,500

y Afghan hijackers trial declared unsafe and they were allowed

to stay in the UK

yBelmarsh detainees

y Learco Chindamo allowed to stay in UK after leaving jail for

murder of Headmaster Philip Lawrence

y Judges side with privacy in the cases of Michael Douglas and

Max Mosley


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Conclusions

y Vastly increased judicial activism in politics

y Vastly increased actions against governments since 1990

y Path has been made easier for judges to act

y EU law is of growing importance and the benchmark is theFactortame case

y A rights based culture has become endemic in the UK


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Future Developments

Labour

y Blunkett and Clarke both perplexed at increased judicial

restriction on the executive

y

Green paper emerges The Governance of Britain (Cm 7170)here the government is considering the role of duties

alongside rights


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Conservatives

y Michael Howard launches campaign agianst the HRA and

judicial activism as leader of Conservatives and as he stands

downy David Cameron pledges to repeal the HRA and introduce a

UK based Bill of Rights

y Conflict is set to continue!


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Resources to take you further

y http://www.supremecourt.gov.uk/index.html

Use this for cases and structure

http://www.independent.co.uk/news/uk/home-news/no-

third-runway-ndash-yet-judge-wades-into-heathrow-battle-1928739.html

Use this for recent attacks on the governments plans for a third

runway at Heathrow


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http://news.bbc.co.uk/1/hi/sci/tech/default.stm

Use this for a new case of Judicial review of the badger cull

y http://www.michaelhowardmp.com/speeches/parliamentandthecourts181109.htm

Use this as link to see how government ministers feel that too

much power has gone to the judges


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Questions?

judicary & the executive

Documents