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The judiciary and civil liberties
Political role of the judiciary
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Dispensing justice- trials and hearings to be conducted in a way to ensure all parties get a fair
hearing and that the spirit of the law is applied.
Where statute not clear it is the task of the judges to interpret the meaning of the law (judge made
law)
Case law- how should laws against inciting others to commit crime, race crime operate in specific
circumstances- once application in specific case established this sets a precedent (judge made
law)
Declaring common law- rules of behaviour which have developed solely by tradition- to deal with
disputes such as inheritance, commercial practices, rights- where no statute or clear common law
the judge takes evidence and decides what the common law is (judge made law) Sets a
precedent.
Judicial Review- court reviews decisions made by state or any public body in relation to its
citizens. Court may declare ultra vires. Passage of the HRA increased boost as it meant courts
might review actions which contravene the ECHR.
Public Enquiries where judges called on to hold enquiries into matters widespread concernLeveson enquiry into phone hacking
In disputes concerning competence of the devolved systems the Judicial Committee Privy council
decides who has jurisdiction.
Sentencing since 1990s home secretaries and judges clash over sentencing with latter wanting to
retain independence action. Legislation has introduced minimum sentencing in certain areas
Key principles
• Sovereignty of Parliament-source of all political
authority. If legislation deemed a breach of the
HRA all judges can do is a declaration to the
effect thereof
• Rule of Law – applies to all and all entitled to a
fair trial
• Judicial precedent-when judge makes law other
courts must abide by interpretation only a higher
court can overturn.
• Primacy of EU law-the duty of the British courts
to enforce EU law and challenge the UK
legislation where it is incompatible.
Independence of the judiciary
• If judges are not independent a danger
government will exceed its powers
• Citizens need to feel they will be based on
principles justice and rule of law
• Independence implies judges are selected
on a neutral basis to prevent collusion
between judiciary and government
How independence is maintained
• Security of tenure and this includes their salaries
• Contempt of Court- government must not interfere with
result or comment on case in public/Parliament.
• Appointment is made by non political Judicial
Appointments Commission and appeal Court and
Supreme Court by cttee comprise senior members those
courts and from judicial appointments commissions for
England, Scotland NI
• All judges have had lengthy careers as courtroom
lawyers
Threat to independence
• Government retains control over legal
system via ministry of Justice
• Indirect pressure from ministers over
sentencing policy and protection of rights.
• Prime minister final say over appointment
judges
Are judges neutral
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Yes
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No
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Increasing number of judgements
which in favour of individuals and
minorities`
HRA a further opportunity for
judges to challenge the state.
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Setting aside social background
evidence suggests a succession
of independent-minded liberal
judges who are willing to criticise
government for attack on civil
liberties.
Fact criticism from both main
parties suggests judges are
neutral
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Narrow social and educational
background- Griffith in the Politics
of the Judiciary argued that judges
naturally inclined to favour
interests of the state and public
order against interests of
individuals and minorities.
Many of senior judges also seats
in House of Lords which was seen
as a conservative institution
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Threats to civil liberties
• Legislation 1980s/90s which increased powers of law enforcement
agencies
• 1980s trades’ union legislation
• Increasing amount of information held on private citizens by police,
social security etc…The British government was especially secretive
in absence of FOI
• Tension between government and media over broadcasting rights
• Belief the ability of Parliament to rein in executive power was
weakening.
• Difficulty of seeking redress via ECHR- Strasbourg a long and costly
process
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Progress towards open
government
• 1978 departmental select cttees which had power to
question ministers and civil servants and call for official
papers.
• Data Protection Act 1984- citizens access to computer
files which hold info on them exceptions such as police
records.
• FOI With exceptions, right to see any public documents.
Media exploit the act to obtain more background info on
government than before and citizens access to papers
detailing their dealings with the state. FOI important in
revealing expenses scandal 2009.
The Human Rights Act
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Does not affect parliamentary sovereignty- however the court can declare act of Parliament incompatible with
European Convention and Parliament may amend legislation this happened 2004 with the anti terrorism act 2001
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All acts by Scottish Parliament, the regional assemblies, local govts must be compatible with ECHR.
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When a bill is introduced to Parliament, the minister responsible is required under section 19 of the HRA to certify
whether or not the proposed legislation is compatible. This is important as he has to consult with civil servants on
whether it is. The JCHR then considers the bill clause by clause and if there is a dispute between its interpretation
of compatibility and that of the minister it is open to debate by Parliament
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With passage of the HRA a joint parliamentary cttee established to monitor proposed legislation to see if
compatible with the act. On extended pupil searches in the education bill of present government, the JCHR
achieved a more circumscribed extended pupil searches to make them more compatible with the HRA.
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Since signing up to the social chapter of Maastricht Treaty 1997 an extension of economic and employment rights
in the UK
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As a signatory of the European Convention Human Rights, it is inconceivable that the government will hold out or
it would be forced to resign from the convention.
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As part of the Coalition Agreement 2010, the Conservatives agreed to drop a pledge to repeal the HRA in place of
establishing a Bill of Rights Commission. The remit of the latter is limited by the fact that anything which replaces
it must be compatible with the ECHR if the UK is to remain in the ECHR. Also the devolved assemblies must
comply with the HRA.
Why has there been growing
conflict between the government
and the judiciary?
• Home Secretaries have tried to obtain control over
sentencing in serious crime by imposing minimum tariffs.
This has caused conflict with judiciary. Judges concern
at creation of the Sentencing Council 2010 to set out
guidelines for judges.
• Senior judges such as Lords Woolf and Phillips criticised
erosion ciivl liberties. The 2001 Anti terrorism Act as
unlawful and 2003 Criminal Justice Bill as it allowed for
person to be tried for same crime twice , dropping of a
jury and allowing past convictions as evidence.
• Politicians have criticised judges for speaking out.
Blunkett and Clarke criticise judges for being too
politically active
How effectively do judges protect
rights
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For
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Against
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HRA given judges a codified set of rights to judge
whether executive and legislation threatens rights.
Act is binding on all but Parliament
Judiciary is independent
Easier for citizens to seek judicial review
Supreme Court showing signs of greater
independence than Lords
The case of Paul Chambers. The latter was
convicted in 2010 off breach of the 2003
Communications Act which prohibits sending by
means of a public electronic communications
network a message or other matter that is
grossly offensive or of an indecent, obscene or
menacing character. He had tweeted in frustration
Crap! Robin Hood airport is closed. You’ve got
a week to sort out this shit together otherwise
I’m blowing the airport sky high!!!. A high court
ruling overturned the original conviction in 2012 and
represents a significant shift in the legal system’s
treatment of social media sites, signalling that
comments should be read in the context of online
communications. Lord Judge’s ruling was greeted
as a victory for freedom of speech.
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Sovereignty of Parliament remains
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HRA not entrenched and does not bind Parliament
No pre legislative review- judges cannot influence
legislation before presented to Parliament
Judges lack democratic legitimacy
Where judges believed to be obstructing
government the law can be amended to force them
to comply with government wishes
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