key judicial concepts (teacher resources)

The Role of Parliament

Key Judicial Concepts

1Wednesday 14th September 2011Miss Christian 12E F9 Lesson #1

The Rule of Law


Learning ObjectivesTo identify the features of the Rule of LawTo examine the benefits of a rule-based governance

What does the rule of law actually mean? We vaguely know that its presence distinguishes democracies from totalitarian states and dictatorships, but what are its ingredients? Why does it matter so much, and who enforces it, defends it and makes sure it continues to exist?

Thinking Corner

The Rule of Law

The Rule of LawThere can be no punishment unless a court decides there has been a breach of law.The rights of individuals are determined by legal rules and not the arbitrary behaviour of authorities.Everyone, regardless of your position in society, is subject to the law.

The Rule of Law, in its most basic form, is the principle that no one is above the law. The rule follows logically from the idea that truth, and therefore law, is based upon fundamental principles which can be discovered, but which cannot be created through an act of will.The most important application of the rule of law is the principle that governmental authority is legitimately exercised only in accordance with written, publicly disclosed laws adopted and enforced in accordance with established procedural steps that are referred to as due process. The principle is intended to be a safeguard against arbitrary governance, whether by a totalitarian leader or by mob rule. Thus, the rule of law is hostile both to dictatorship and to anarchy.

How relevant to 21st century British Politics and Society is the Rule of Law?

How relevant to 21st century British Politics and Society is the Rule of Law?Supporters of a written and clearly defined constitution believe that as society has had its liberties more and more encroached on by central government, the Rule of Law is more important now than ever.

How relevant to 21st century British Politics and Society is the Rule of Law?The central government has sought and seeks to undermine the basic rights and liberties of the people with an increase in things such as:the Official Secrets Actthe attempt to remove an individuals right to trial by jurythe activities of the Secret Service (especially after September 11th)removing what were considered traditional rights (such as the removal of the workers right at GCHQ to belong to a trade union under the Thatcher government (though brought back since 1997)The gagging clause that now has to be signed by those in the Civil Service after the Clive Ponting and Belgrano issue shortly after the end of the Falklands War

How relevant to 21st century British Politics and Society is the Rule of Law?However, individuals still retain a great deal of personal freedom and many individuals will never be affected by the Official Secrets Act or the activities of Britains secret services. It is agreed with some justification that a modern society needs bodies like MI5 and MI6 simply because there are a tiny number of individuals who wish to subvert society and have to be dealt with accordingly. A law-abiding individual, it is argued, need never worry about such organisations. Also there are bodies that theoretically oversee the activities of government agencies and their work such as the Council of Tribunals and the Parliamentary Commissioner. It is argued that these bodies help to protect the rights of the individual at the expense of any incursions into their personal freedom by government agencies.

The Constitutional Reform Act of 2005 guaranteed the rule of law. The rule of law is the foundation stone of any healthy democracy, in that it established that all conduct and behaviour throughout society should conform to a framework of law. Its principles include equality before the law and punishment only for breaches of law.

With reference to the source, what is the rule of law? (5 marks)

The Biggest Political RiddleIf parliament is sovereign, does that mean that it can pass laws that are clearly contrary to the rule of law?If we have no written constitution, do we therefore have a parliament that can disregard decisions of the courts?

Can you solve it?

HomeworkReading and Note Taking, p264-266The rule of law

Judicial Independence


Learning ObjectivesTo understand the principle of judicial independence and how it is maintainedTo identify limitations on judicial independenceTo find contemporary examples of judicial independence

Judicial Independencethe idea that the judiciary needs to be kept away from the other branches of government. That is, courts should not be subject to improper influence from the other branches of government, or from private or partisan interests.

The Legal and Constitutional Environment of the JudiciarySovereignty of ParliamentParliament is the ultimate source of political powerThe Judiciary have to enforce Parliamentary law, but they can suggest changesThe Rule of LawAll citizens are equal under the rule of lawEveryone is entitled to a fair trial

Judicial PrecedentInterpretation of a law by one judge then has to be followed in futurePrecedent can be overruled by any higher judge

Primacy of EU lawEU law takes precedent over domestic law where our Parliament has given the EU jurisdictionBritish courts must enforce EU law

History of Judicial IndependenceIn the United Kingdom judicial independence emerged slowly. Under the Norman monarchy the king and his Curia Regis (Royal Council) held judicial power. Later, however, more courts were created and a judicial profession grew. In the fifteenth century, the king's role in this feature of government thus became small. Nevertheless, kings could still influence courts and dismiss judges. The Stuarts used this power frequently in order to overpower Parliament. After the Stuarts were removed in the Glorious Revolution of 1688, some advocated guarding against royal manipulation of the judiciary. King William III finally approved the Act of Settlement 1701, which established tenure for judges unless Parliament removed them.

Why does the judiciary need to be independent?

Why does the judiciary need to be independent?To provide a check on government and have no political bias.Judges cannot collude with the government if they are independent.Everyone has the right to a fair trial.

How is the judiciary independent?judges cannot be removed from office on the grounds of the decisions they makeno servant of government can interfere with the result of a court case or comment on it in public or Parliamentthe Appointments Commission can object senior judge appointmentsall senior judges have been courtroom lawyersHow has the independence of the judiciary been threatened?the Lord Chancellor is a political figure in cabinet as well as the head of the court systemincreasing political dialogue between judges and politiciansLord Chancellor has (limited) veto over judicial appointments

How is Judicial Independence maintained?Separation of PowersSecurity of TenureSalaryFreedom from criticism/Contempt of CourtIndependent Legal ProfessionJudicial Criticism of the Govt.Judicial AppointmentsRight of AppealJudicial Review

1. Separation of PowersSince 2005 Constitutional Reform Act there has been a greater degree of separation of Powers. The Final Court of Appeal is now the Supreme Court (since 2009) and not the House of Lords and the Lord Chancellor is now no longer head of the Judiciary (since 2006 - it has been the Lord Chief Justice). The Lord Chancellor now has to swear an oath to defend the independence of the Judiciary.

2. Security of TenureJudges cannot be dismissed on the basis of the decisions they make (can only be dismissed for improper conduct). Their jobs are not linked to Govt. changes. This means that they are free to make decisions - even if they will offend the Government.

3. SalaryTheir pay comes from the Consolidated Fund which is not subject to annual review by the House of Commons and their rate of pay is decided by an independent pay review body.In addition, a Judges salary is not reduced if they make controversial decisions. Judges get paid a high salary - this means that it would be less easy to bribe a Judge.

4. Freedom from criticism/Contempt of CourtThere are Constitutional conventions that forbid MPs and Peers from criticizing court rulings and judicial decisions in Parliament. If the Govt./a servant of the Govt. attempts to interfere with the results of a court case, or to comment on a case in public or Parliament it is a contempt of Court (anything which is the subject of court proceedings is deemed to be sub judice).This means that interference could result in legal action being taken against that person. However, in practice these rules are sometimes broken.{eg: Lord Stoneham and the super injunction case}

5. Independent Legal ProfessionJudges are appointed from the ranks of lawyers who belong to an independent Legal Profession whose standards area regulated by the Law Society and not by the Govt.

6. Judicial Criticism of the GovtSenior Judges have criticised the Govt. Eg: Lord Woolf has a history of being outspoken. In 2004 he attacked the Governments plans for Constitutional reform - such activism is evidence of Judicial Independence

7. Judicial AppointmentsThe appointments system was reformed under the Constitutional Reform Act 2005 - most Judges are now appointed by a Judicial Appointments Commission (JAC - set up in 2006) which is politically independent. Judges in the Supreme Court and Appeal Court are appointed by a special Committee comprising senior members of those courts and representatives of the JAC - This means that there can be little or no political influence over the appointment of the judiciary (although the Lord Chancellor does still have a role in selection)

8. Right of AppealJudges are well aware that their decisions can be appealed.This means that they will try to ensure that they reach a fair/unbiased decision which is free from political influence, first time round.

9. Judicial ReviewThe judiciary has the power to rule that decisions of ministers/servants of the Govt. are Ultra Vires - ministers have had to back downEg: 2007 BAE arms case and 2010 Yarls Wood Detention centre. This demonstrates the capacity of the judiciary to criticise the Govt. of the day.

How is Judicial Independence threatened?Prime Ministers Role in Appointments Political dialogue The Justice MinistryCross over of elitesInevitable overlapPPTCI Pompous Politicians Threaten Constitutional Independence

1. Prime Ministers Role in Appointments Although the appointment of senior judges is now handled by the independent Judicial Appointments Commission, the PM (on the advice of the Lord Chancellor) has a final veto over such appointments

2. Political dialogue In recent years there has been a tendency for politicians to enter into political dialogue with Judges over issues such as sentencing policy and Human Rights. Whilst this = not direct interference, it could result in indirect influence. Eg: in 2003 - David Blunkett condemned the release of 9 Afghan hijackers; 2005 Charles Clarke criticised the release of terrorist suspects from Belmarsh prison; 2007 John Reid attacked decision not to deport the murderer of Philip Lawrence = testing the principle of Judicial Independence to its limits.

3. The Justice MinistryThe Government retains control over the legal system through the Justice Ministry. Whilst this does not constitute direct control, it does suggest some interference

4. Cross over of elitesBecause many top politicians and senior figures in the judiciary were educated in the same establishments - eg: Oxbridge (1999 86% of Judiciary = Oxbridge), they know each other and there is the possibility that they will influence each other/support each others views. Eg: evidence in 1980s that Judiciary were adopting the same political stance as the Govt. - harsh Trade Union judgements.

5. Inevitable overlapAlthough the Judiciary is proud of its independence, it is inevitable law and politics will have some connection given that Parliament has legal sovereignty and the Judges role is to uphold and interpret Parliaments laws.

Study the following passage and answer the questions that follow.

The judiciary is considered to be independent of the other two branches of government. Judges salaries are paid from the Consolidated Fund; this means that they do not have to be voted upon each year by Parliament. The House of Commons generally forbids MPs from making any reference to matters before the criminal and civil courts. By convention, a similar restriction is observed by ministers and civil servants. For their part, judges by convention do not engage in politically partisan activity, thus upholding their neutrality. Indeed, they have generally avoided commenting on matters of public policy. However, the dividing line between judges and politicians was never quite as sharp as these features would suggest. The most obvious example used to be found in the figure of the Lord Chancellor. Prior to the passage of the 2005 Constitutional Reform Act, he was head of the judiciary, the presiding officer of the House of Lords and a member of the Cabinet. The 2005 Act, which also proposed the establishment of a new Supreme Court by 2009, changed this situation, providing for the transfer of his judicial role to the Lord Chief Justice.

Adapted from: `The Judiciary, by Philip Norton in Politics UK, Bill Jones et al., 6th edition, Pearson Education, 2007.

With reference to the source, describe the measures that exist to maintain the independence and neutrality of the judiciary. (5 marks)

Can the judiciary be described as independent?Not independentRarely independentMostly independentCompletely independentSomewhat independent

HomeworkReading and Note Taking, p266-269Judges and Politics Are judges independent?

Judicial Neutrality


Learning ObjectivesTo understand the principle of judicial neutrality and how it is maintainedTo identify limitations on judicial neutralityTo find contemporary examples of judicial neutrality

What is judicial neutrality?Judicial neutrality requires Judges to be free from political or any other biasThe Rule of Law = everyone should be treated equally under the law - important therefore that Judges are unbiasedUntil 1990s - widespread view that the Judiciary was not neutralSince then - more evidence to suggest that they are

Is there a lack of neutrality?Main argument = Judges are from a very narrow social backgroundMiddle/upper middle class backgroundsPublic school/Oxbridge educatedThis is likely to make them more Conservative in outlook

Meet the UK Supreme Court

Lord PhilipsPresident of The Supreme Court, The Right Hon the Lord Phillips of Worth Matravers, KG74 years oldUniversity of CambridgeLord of Appeal 1999-2000Master of the Rolls 2000-2005Lord Chief Justice 2005-2008Senior Lord of Appeal 2008-2009Appointed President of the Supreme Court 2009

Lord HopeDeputy President of The Supreme Court, The Right Hon the Lord Hope of Craighead,KT73 years oldUniversity of CambridgeLord Justice General and Lord President of the Court of Session 1989-1996Lord of Appeal 1996-2009Second Senior Lord of Appeal 2009Appointed to Supreme Court 2009

Lord DysonJustice of The Supreme Court, The Right Honourable Lord Dyson68 years oldLeeds Grammar School & Oxford UniversityHigh Court Judge 1993-2001Lord Justice of Appeal 2001-2010Appointed to Supreme Court April 2010

Lord ClarkeJustice of The Supreme Court, The Right Hon the Lord Clarke of Stone-cum-Ebony69 years oldUniversity of CambridgeHigh Court Judge 1993-1998Lord Justice of Appeal 1998-2005Master of the Rolls 2005-2009Appointed to Supreme Court 2009

Lord WalkerJustice of The Supreme Court, The Right Hon the Lord Walker of Gestingthorpe 73 years oldUniversity of CambridgeHigh Court Judge 1994-1997Lord Justice of Appeal 1997-2002Lord of Appeal 2002-2009Appointed to Supreme Court 2009

Lady HaleJustice of The Supreme Court, The Right Hon the Baroness Hale of Richmond67 years oldUniversity of CambridgeHigh Court Judge 1994-1999Lord Justice of Appeal 1999-2003Lord of Appeal 2004-2009Appointed to Supreme Court 2009

Lord BrownJustice of The Supreme Court, The Right Hon the Lord Brown of Eaton-under-Heywood 74 years oldUniversity of OxfordHigh Court Judge 1984-1992Lord Justice of Appeal 1992-2004Lord of Appeal 2004-2009Appointed to Supreme Court 2009

Lord ManceJustice of The Supreme Court, The Right Hon the Lord Mance68 years oldUniversity of OxfordHigh Court Judge 1993-1999Lord Justice of Appeal 1992-2005Lord of Appeal 2005-2009Appointed to Supreme Court 2009

Lord KerrJustice of The Supreme Court, The Right Hon the Lord Kerr of Tonaghmore 63 years oldQueens University, BelfastLord Chief Justice, Northern Ireland 2004-2009Lord of Appeal 2009Appointed to Supreme Court 2009

Lord WilsonJustice of The Supreme Court, The Right Hon. Lord Wilson of Culworth66 years oldUniversity of OxfordHigh Court Judge 1993-2005Lord Justice of Appeal 2005-2011Appointed to Supreme Court 2011

Lord SumptionJustice of The Supreme Court, The Right Hon. Lord Sumption63 years oldEton & University of OxfordDeputy High Court Judge 1992-1993Recorder 1993-2001Judge of the Courts of Appeal of Jersey and Guernsey 1995-2012Appointed to Supreme Court 2012

Lord ReedJustice of The Supreme Court, The Right Hon. Lord Reed55 years oldUniversity of OxfordSenator of the College of Justice 1998-2012Appointed to Supreme Court 2012

The Griffith TheoryProf. John Griffith 1977 = the social background of Judges would influence the decisions they madeIn cases involving women, homosexuals, trades unionists etc. - gender and social background of Judge might have an influenceGriffith also argued that all lawyers were naturally inclined to favour the interests of the state/public order over those of the individualThey were more likely to be conservative than liberalEg: during 1980s - judgements in trade union cases and conflicts between central and local govt = decided in favour of the Govt. (also see Ponting case)Senior judges had been members of the HoL, which up to 1999 was a very conservative institutionThe first Supreme Court, appointed in 2009 did not appear to change these imbalances - out of 12 members: 11 = Oxbridge educated, 11 were male, average age = 6820% of judges = women (although women = 51% of population), 4% of Judges = ethnic minority (although 8% of population - ethnic minority)This seems very conservative and representative of a narrow social base

Judicial Neutrality no longer existsThe judiciary consists of a very narrow social, economic and professional background, mostly male, former QCs from Eton and Oxbridge.They tend to come from social backgrounds with a bias against certain groups- women, homosexuals and trade unionistsMany Supreme Court judges formerly sat in the House of Lords, which is seen as an incredibly conservative institution- could therefore be influenced by former colleaguesThe Supreme Court has only 1 female member, out of 12 and 11 are Oxbridge graduates.

Judicial Neutrality still existsThere are many judges who are seen as 'liberal', such as Lords Woolf, Hoffman and Bingham.Both of the main parties have criticised them for being biased- they cannot be biased both ways and therefore must be neutral.The Human Rights Act (1998) has provided the judiciary with increased "ammunition" to be used against the state in civil cases.The Belmarsh case and the Mental Health Act show changing attitudes within the judiciary.Michael Howard lost many cases over prison reviews and human rights abuses.There has recently been a large number of cases in which the individual has been favoured over the state.

Pause for ThoughtA number of foreign nationals, who became known as the Belmarsh detainees, were detained indefinitely as they were accused by the British Government of having links to terrorist organisations, even though no criminal charge was brought. They challenged their detention on the grounds that the United Kingdom was in breach of Article 5 of the European Court of Human Rights (ECHR). The court was unable to accept indefinite detention of foreign national terror suspects, as opposed to the 14-day detention of national terror suspects. The court based its reasoning on the fact that foreign national terror suspects posed no greater risk than national ones. Consequently, the British Government was found to be in breach of Articles 5 and 14 of the ECHR.

The Belmarsh Case

Arguments that judges DO maintain neutralityJudges are bound by rules of interpretation (stare decisis - doctrine of precedent) when making their judgements - they would be in trouble if they departed from these too muchThey are also bound by strict rules of conduct about what they can say in courtThey have pride in their neutrality and are trained to maintain itTheir background should not necessarily affect their decisionsThey cannot engage in open political activity/make political commentsThey are watched by the media (eg: Tony Martin case in 2001)Large number of judgements in recent years have been in favour of individuals and minorities against the Govt. = shows neutralityMid 1990s - Michael Howard (Home Secretary) lost a series of Judicial Review cases brought against him by prisoners in custody (regime = against HR)Examples: 2002 - Court ruled that the provision in the Mental Health Act requiring that a person had to prove fitness to be released contravened their Human Rights - they should have a right to freedom unless this is proved against the public interest

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2010 - Supreme Court ruled that the Govt did not have the legal power to freeze the assets of terrorists. (Govt. subsequently passed legislation to enable it to freeze the assets)The Human Rights Act 1998 = more power for the Judiciary to use against the state in favour of individual rightsIndeed, Judges have become so active in this area that the Conservatives had begun to talk about repealing the ActTherefore, old charge that Judiciary seems to favour the state over the individual now no longer seems trueThe social composition of the Judiciary seems little altered thoughHowever, there have been a string of independently minded Judges such as Lords Woolf, Hoffman and BinghamThey have been quick to criticise the Govt for threatening Civil LibertiesAlso - senior judges have been criticised by the Govt - suggests that they are neutralEvidence from the SC = it is likely to prove fully independent and therefore neutral

Arguments that judges DO maintain neutrality

To what extent are judges both independent and neutral?Command phrase Make a judgment as to how fare.g. small extent, some extent, large extent etc.JudgesNot the judiciary as a whole specifically judges in relation to their roleJudicial Independencei.e. separate from other branchesConsider how judges are independent and threats to their independenceJudicial Neutralityi.e. free from influenceConsider arguments for how judges are neutral and how they are not

EXAM FOCUSTo what extent are judges both independent and neutral?

25 marks = 25 minutes

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HomeworkReading and Note Taking, p270-272Judges and Politics Are judges neutral?

Judicial Review


Learning ObjectivesTo understand the concept of judicial reviewTo identify the scope for judicial reviewTo find contemporary examples of judicial review

Judicial Reviewa court's authority to examine an executive or legislative act and to invalidate that act if it is contrary to constitutional principlesJudicial 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?

Judicial Review

Mr PollytishonJudges like you cant overturn Acts of Parliament because parliament is sovereign!

Lord DuedisharyThat is true but we can make judgements on how the government carries out legislation and the actions of ministers and members of the government like you!Oh

Judicial Review

Mr PollytishonBut parliament grants every other institution its powers including the judiciary!

Lord DuedisharyYes, and it is the courts job to make sure that these bodies (and parliament) do not step beyond these powers and act ultra vires.Ultra what?Ultra vires means literally beyond the powersin other words Were watching you!!

Summary:The means by which the courts can be used to challenge action taken by ministers and other public bodies on the grounds that the body has - exceeded or abused its legal power OR failed to follow proper procedures OR reached a decision that is unreasonable or irrational OR acted unfairly (Ian Budge et al)Judicial Review

But a member of the government would never do anything like that!!

Wanna bet?

Judicial Review

Eeeeek! Maybe this whole judicial review is important after all.

Back in 2003 David Blunkett attempted to restrict benefit payments to asylum seekers a decision the judiciary overturned!

Then in 2010 the judiciary used judicial review to examine the way women and children illegal immigrants were held in Yarls Wood Detention Centre.

Then again in 2011 we reviewed Michael Goves decision not to continue with the Building Schools for the Future Scheme.

And these are just some examples!Yes it is very important. It is the cornerstone of the judiciary without the power of judicial review we would be powerless to make sure you politicians behave yourselves!I suppose judicial review is an important way in which civil liberties are protectedand keeping an eye on those with power is never a bad idea.

Is judicial review really an effective check as parliament can get around it with new legislation?Should unelected judges be able to tell elected representatives what they can and cannot do?Judges are not representative of society. Does this impact their decisions?Are judges more likely to protect the government than individuals? Could the UK have a workable system of government without judicial review?

Lest ye be judged

You are writing a constitution for a new state LordswoodoniaBUT you would only be able to include one of the judicial principles we have learnt about. Group TaskYou will have to select a judicial principle and present an argument to the class as to why your principle should be included in the constitution.

The class will be able to challenge and counter your argument so you need to have a good understanding of each principle and the reasons why your principle is the most important.

The aim is to persuade the rest of the class to include the principle you have chosen. There will be a free vote at the end of the discussion to decide which groups argument was the most persuasive.

PRAISE SLIPS FOR WINNING GROUP

You are writing a constitution for a new state LordswoodoniaBUT you would only be able to include one of the judicial principles we have learnt about. Judicial IndependenceJudicial NeutralityJudicial ReviewThings to think aboutWhich would you choose?Why did you choose it?Is this the most important?How would you ensure this principle in the constitution?What would the system of government be like without the other 2 principles?Can you have one without the others?Group Task

Homework