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The role of the judiciary and judges
- To interpret and administer the laws laid down by Parliament or other judges.
- To defend the liberty of the individual.
- Sit on judicial review panels and offering expert opinion.
Separation of Powers
- Essential area for the judiciary.
- Montesquieu – three branches of power…legislature, judiciary and executive.
- Does SoP really apply in UK? No…Lord Chancellor’s office gives a link between the judiciary and the executive, as Lord Chancellor is political appointment (Lord Falconer is a friend of Tony Blair).
- Separation of Power stronger in USA with elected judges, more liberal constitution, and no overlap.
Judicial Independence
Ensured by:
- Judicial review
- Security of judge’s jobs means they can make decisions without worry of being sacked.
- Freedom of speech cannot be sued for their words or actions in court.
- Only accountable to superior judges, not parliament.
Are judges free from…
| The legislature
| The executive
|
- Only Law Lords are involved in law making process, but legal experience helpful for practical reasons.
- Part time judges can be MP’s.
- Judges can create case law – should they be able to make such a law if not democratically elected (acting as legislature here).
|
- Can’t dismiss senior judges.
- Free from fear of being sacked, as jobs are extremely safe.
- Changes made so appointment made by Independent Judicial Appointments Committee.
|
Noteworthy examples
- IAN HUNTLEY – The judge (and jury) had hard time remaining neutral, as ‘trial by press’ had occurred so much.
- ‘SPYCATCHER’ – Peter Wright publishing book about MI5, breaking secrets act – injunction against UK publication allowed, even though already on sale in Australia and USA – fell on side of govt…an un-neutral decision here?
- GCHQ UNIONISM – Thatcher tried to ban civil servants being in unions, to safeguard secrets being leaked in disputes. Judge found in Thatcher’s (govt) favour…no neutrality?
- CLIVE PONTING – Found not guilty of breaking secrets act, after releasing classified info about Belgrano sinking – jury felt necessary for the public to know, despite political fallout for govt…a neutral judicial system?
Human Rights
- UN declaration – Right to life, free movement, food and shelter, freedom from torture and slavery.
- Euro Convention on Human Rights – Entrenched the UN declaration into the EU…however…in UK didn’t become entrenched as a part of UK law, unlike in France where it was then adopted as statute.
- Euro Court of H.R. – From 1966 ECHR was permitted to be used in UK, but only HRA 1998 was a UK statute created.
- HRA 1998 – Covers all public state bodies (police, courts, council, devolved bodies etc). Key areas of discussion are – Right To Privacy (can privacy be given up?) and Freedom of Expression (example the BNP activist and leader being found not guilty on race-hate charges recently).
Past questions and areas to mention
Describe two civil liberties. (5)
- Freedom from torture (regulations on how government authorities can act, after the horrors of WW2 ‘interrogations’ by Nazis and Russia).
- Right to take part in elections – free democracy must be implemented in countries taking on the Euro Convention of Human Rights.
How do judges protect civil liberties? (15)
- The HRA act has allowed judges a UK statute to enforce Human Rights with a UK law.
- Judicial review protects individual against the government’s machines growth of use.
- Judges can ensure natural justice is allowed, and therefore can throw out trials that will not achieve a fair result.
To what extent are judges independent and neutral? (30)
- They cannot easily be removed from office, and can therefore make decisions, knowing that the government isn’t going to sack them for a decision that goes against them. ‘Scrutiny of tenure’
- Conventions against parliament verbally attacking judicial decisions.
- Seek to serve the individual to get justice, regardless of political bias.
- Are not politically engaged (and if they are the trial is appealed, as in the Pinochet extradition case, where the judge didn’t announce he was an Amnesty Member).
- Only accountable to more senior judge’s decisions, and not parliament.
- Freedom of speech ensures they can make whatever ruling they see as fit.
(Answers extracted from an Edexcel mark scheme.)
Comments
These notes are aimed at people studying for Edexcel A Level Politics, module 2.
Originally submitted by mattey on TSR Forums.
