The JudiciaryThe Judiciary

The law and PoliticsThe law and Politics

Lesson objectiveLesson objective

By the end of this section, you will By the end of this section, you will understand how the Judiciary understand how the Judiciary operates within the UK system of operates within the UK system of GovernmentGovernment

The Rule of Law, the function of the The Rule of Law, the function of the judiciary and judiciary and

Don’t forget your triangleDon’t forget your triangle

Executive

Legislative Judiciary

Fusion of powersFusion of powers

What is the Fusion of Powers?What is the Fusion of Powers? From what you have learnt thus far, From what you have learnt thus far,

how does the Judiciary fit into the how does the Judiciary fit into the fusion?fusion?

Would it not be better if the powers of Would it not be better if the powers of the Judiciary were separate?the Judiciary were separate?

The StateThe State Makes the lawMakes the law Executes the lawExecutes the law Adjudicates on the lawAdjudicates on the law

The Rule of LawThe Rule of Law

What do you understand by this What do you understand by this term?term?

It is the framework of legal rules It is the framework of legal rules guiding and restraining political guiding and restraining political behaviour in a liberal democratic behaviour in a liberal democratic societysociety

Errr right…so what does this mean in Errr right…so what does this mean in practice?practice?

The Rule of LawThe Rule of Law

Everyone is bound by the law (what Everyone is bound by the law (what about Ministers who can change the about Ministers who can change the law?)law?)

All persons are equal before the law All persons are equal before the law (what about financial restraints?)(what about financial restraints?)

Law and order must be maintained (is Law and order must be maintained (is this at the expense of civil liberties?)this at the expense of civil liberties?)

Legal redress is provided Legal redress is provided The law and legal process should be The law and legal process should be

independent (so why do politicians independent (so why do politicians appoint judges?)appoint judges?)

Types of LawTypes of Law What are the different types of law?What are the different types of law? Criminal Law Criminal Law

Crimes against – The StateCrimes against – The State The PersonThe Person Property Property

Civil LawCivil Law Legal relations between personsLegal relations between persons A plaintiff pursues and action against a A plaintiff pursues and action against a

defendantdefendant Administrative LawAdministrative Law

Legal restraints on those who decide on policyLegal restraints on those who decide on policy Ultra-Vires is a key issue here (acting beyond Ultra-Vires is a key issue here (acting beyond

the powers conferred on an elected official)the powers conferred on an elected official)

Law and Politics in England, Wales Law and Politics in England, Wales and Scotlandand Scotland

English law is based on common law English law is based on common law – essentially based on past decisions– essentially based on past decisions

Statute Law over-rides common lawStatute Law over-rides common law Scottish Law is influenced by Roman Scottish Law is influenced by Roman

LawLaw

– – involves distinctive principles involves distinctive principles Supranational EU Law has an Supranational EU Law has an

increasing impactincreasing impact

The CourtsThe Courts

House of Lords12 Lords of Appeal

Under Lord Chancellor

County Courts260 Courts presided over by Circuit Judges

And district Judges

Court of Appeal – 27 Lord Justices of Appeal

Criminal DivisionUnder Lord Chief Justice

Civil DivisionUnder Master of Rolls

The Crown CourtPresided over by High Court and Circuit Judges

Magistrates CourtPresided over by Local Magistrates

The High CourtThe Queens Bench63 Judges under the Lord Chief Justice

Deals with Common Law

Chancery Division17 Judges under the Lord ChancellorDeals with equity

Family Division15 Judges under the President

Deals with domestic

issues

TaskTask Without looking at your notesWithout looking at your notes a) What type of case does a Criminal Court hear?a) What type of case does a Criminal Court hear? b) What are the appeal routes for a Criminal b) What are the appeal routes for a Criminal

case?case? c) What type of case does a Civil Court hear?c) What type of case does a Civil Court hear? d) What are the appeal routes for a civil case?d) What are the appeal routes for a civil case? e) How many Lords of Appeal are there?e) How many Lords of Appeal are there? f) Who controls the Queens Bench Division? What f) Who controls the Queens Bench Division? What

do they deal with?do they deal with? g) Who controls the Chancery Division? What do g) Who controls the Chancery Division? What do

they deal with?they deal with? h) What do you understand by the term ‘Judicial h) What do you understand by the term ‘Judicial

Independence’?Independence’?

Judicial IndependenceJudicial Independence

The Constitutional principle that in The Constitutional principle that in order to protect individual freedom, order to protect individual freedom, the Judiciary should be independent the Judiciary should be independent from the Executive and the from the Executive and the LegislativeLegislative

Is this possible if the Judiciary sits on Is this possible if the Judiciary sits on the Legislative?the Legislative?

ExampleExample From The Times 11From The Times 11thth April 2006 April 2006 ““The Home Office has infringed the human right to The Home Office has infringed the human right to

marry and start a family”marry and start a family” Rules designed to curb sham marriages infringe Rules designed to curb sham marriages infringe

human rights because they discriminate against human rights because they discriminate against those outside the Church of England – contravenes those outside the Church of England – contravenes Article 12 of the European Convention on Human Article 12 of the European Convention on Human RightsRights

Case brought by Mohmoud Baiai an illegal Case brought by Mohmoud Baiai an illegal immigrant from Algeria and Izabela Trzcinska from immigrant from Algeria and Izabela Trzcinska from PolandPoland

Sham marriages had risen from 756 in 2001, to Sham marriages had risen from 756 in 2001, to 2712 in 2003, before the new law reduced this 2712 in 2003, before the new law reduced this number to 243 last yearnumber to 243 last year

Example 2Example 2

Also from The Times 11Also from The Times 11thth April 2006 April 2006 ““The Government’s drive to increase the The Government’s drive to increase the

deportation of illegal immigrants received deportation of illegal immigrants received a setback when a court ruled that a setback when a court ruled that removing a lesbian couple breached their removing a lesbian couple breached their right to a family life”right to a family life”

Three Court of appeal Judges allowed Three Court of appeal Judges allowed Emine Krasniqi, 54, to stay in Britain, Emine Krasniqi, 54, to stay in Britain, whilst the refugee status of her partner whilst the refugee status of her partner Albana Lamaj, 24, is determined by the Albana Lamaj, 24, is determined by the authoritiesauthorities

Check the paper daily for more examples!!Check the paper daily for more examples!!

AppointmentsAppointments

Lord Chancellor – Appointed by the Lord Chancellor – Appointed by the PM and is a member of the Govt.PM and is a member of the Govt.

Law Lords, Lords of Appeal in Law Lords, Lords of Appeal in Ordinary – Appointed by the Crown Ordinary – Appointed by the Crown on the advice of the Prime Ministeron the advice of the Prime Minister

High Court Judges are appointed by High Court Judges are appointed by the Crown on advice of the Lord the Crown on advice of the Lord Chancellor – Tend to be drawn from a Chancellor – Tend to be drawn from a list of senior barristerslist of senior barristers

What happens then?What happens then?

Once appointed Judges are virtually Once appointed Judges are virtually irremovable from officeirremovable from office

Obligatory retirement age is 70Obligatory retirement age is 70 The Lord Chancellor could authorise The Lord Chancellor could authorise

continuation of Office until 75, if it continuation of Office until 75, if it were in the public interestwere in the public interest

The JudiciaryThe Judiciary

And the Rights of CitizensAnd the Rights of Citizens

Lesson ObjectiveLesson Objective

During this lesson you will During this lesson you will understand what is meant by understand what is meant by ‘individual rights’ and how the Law ‘individual rights’ and how the Law can protect these. can protect these.

By the end of this lesson you will be By the end of this lesson you will be able to answer the following question able to answer the following question “Can we trust our judicial system”?“Can we trust our judicial system”?

Revision TaskRevision Task Without looking at your notesWithout looking at your notes a) What type of case does a Criminal Court hear?a) What type of case does a Criminal Court hear? b) What are the appeal routes for a Criminal b) What are the appeal routes for a Criminal

case?case? c) What type of case does a Civil Court hear?c) What type of case does a Civil Court hear? d) What are the appeal routes for a civil case?d) What are the appeal routes for a civil case? e) How many Lords of Appeal are there?e) How many Lords of Appeal are there? f) Who controls the Queens Bench Division? What f) Who controls the Queens Bench Division? What

do they deal with?do they deal with? g) Who controls the Chancery Division? What do g) Who controls the Chancery Division? What do

they deal with?they deal with? h) What do you understand by the term ‘Judicial h) What do you understand by the term ‘Judicial

Independence’?Independence’?

Revision Task (2)Revision Task (2)

What do we understand by the term What do we understand by the term ‘Judicial Independence’?‘Judicial Independence’?

Is the Judiciary independent?Is the Judiciary independent?

Can you name any cases where the Can you name any cases where the Judiciary has overturned the Judiciary has overturned the decisions of the Legislative?decisions of the Legislative?

TaskTask

Write down definitions for:-Write down definitions for:- Civil RightsCivil Rights Human RightsHuman Rights Natural RightsNatural Rights Civil Rights –Civil Rights – Are rights to which Are rights to which

individuals are entitled to as citizensindividuals are entitled to as citizens Human RightsHuman Rights – Rights all humans have – Rights all humans have

by being human and shouldn’t be infringedby being human and shouldn’t be infringed Natural RightsNatural Rights – These are rights humans – These are rights humans

have in a state of nature, Governments can have in a state of nature, Governments can not deprive peple of the natural rightsnot deprive peple of the natural rights

Basic rulesBasic rules

People may do what they like as long People may do what they like as long as no law exists to prevent them as no law exists to prevent them from doing sofrom doing so

The Human Rights Act (1998) finally The Human Rights Act (1998) finally enshrines basic principles, which enshrines basic principles, which were not in any statute. (This brings were not in any statute. (This brings into UK law the European Convention into UK law the European Convention on Human Rights)on Human Rights)

Civil RightsCivil Rights Political RightsPolitical Rights

The right to vote – Representation of the The right to vote – Representation of the Peoples Act (1918, 1928, 1948, 1969)Peoples Act (1918, 1928, 1948, 1969)

Freedom of MovementFreedom of Movement Right to move freely within Britain (note Right to move freely within Britain (note

terrorist laws and stop and search)terrorist laws and stop and search)

Personal FreedomPersonal Freedom Freedom from detention without charge – Freedom from detention without charge –

Magna Carta 1215 (note detention without Magna Carta 1215 (note detention without charge in Northern Ireland)charge in Northern Ireland)

Freedom of ConscienceFreedom of Conscience Right to practice any religion, withdraw from Right to practice any religion, withdraw from

religious instruction in schools and religious instruction in schools and conscientiously object from warconscientiously object from war

Freedom of expressionFreedom of expression Right to communicate through the media, Right to communicate through the media,

control of treason, obscenity, libel, incitement control of treason, obscenity, libel, incitement to racial hatred etc. to racial hatred etc.

Freedom of Freedom of AssociationAssociation

The right to meet, march and The right to meet, march and protest freely (exclusion zone protest freely (exclusion zone around Westminster)around Westminster)

The Right to propertyThe Right to property Not to be deprived of it (note Not to be deprived of it (note

compulsory purchase orders and compulsory purchase orders and planning restrictions)planning restrictions)

The right to privacyThe right to privacy Article 8 in ECHR, exempt for Article 8 in ECHR, exempt for

state security surveillancestate security surveillance

Rights at workRights at work Protection against unfair dismissal Protection against unfair dismissal

and racial, sexual discriminationand racial, sexual discrimination

Social FreedomsSocial Freedoms Freedom to marry and divorceFreedom to marry and divorce

TaskTask

How effective is the British How effective is the British Constitution in protecting the Constitution in protecting the individual rights of it’s citizens?individual rights of it’s citizens?

Protecting Civil LibertiesProtecting Civil Liberties

Redress of GrievanceRedress of Grievance – The – The legitimate expectations that legitimate expectations that complaints against public officials will complaints against public officials will be considered fairly and impartiallybe considered fairly and impartially

Judicial ReviewJudicial Review – The Constitutional – The Constitutional function exercised by courts to function exercised by courts to review the legislation, regulations review the legislation, regulations and acts of the legislative and and acts of the legislative and executive branches of Govt.executive branches of Govt.

Judicial ReviewJudicial Review ‘‘The great success story has been the remorseless The great success story has been the remorseless

march of administrative law calling Governments to march of administrative law calling Governments to account in court’ - Leeaccount in court’ - Lee

Judicial Review occurs if a public agent has Judicial Review occurs if a public agent has acted ‘Ultra Vires’ – beyond their powers!!acted ‘Ultra Vires’ – beyond their powers!!

Parliament remains Sovereign, so Judges cannot Parliament remains Sovereign, so Judges cannot strike down legislation as unconstitutional – if it’s strike down legislation as unconstitutional – if it’s legal it’s OK!legal it’s OK!

In the US the people are Sovereign so therefore the In the US the people are Sovereign so therefore the Supreme Court can deem legislation unconstitutionalSupreme Court can deem legislation unconstitutional

Ability to scrutinise is controlled – cannot interefere in Ability to scrutinise is controlled – cannot interefere in Treaties, Defence of the Realm, honours, dissolution Treaties, Defence of the Realm, honours, dissolution and appointmentsand appointments

ProcedureProcedure

The aggrieved individual must apply The aggrieved individual must apply for a Judicial review at the High Courtfor a Judicial review at the High Court

Only when permission has been Only when permission has been granted can a case be heard in the granted can a case be heard in the Divisional Court of the Queens Bench Divisional Court of the Queens Bench divisiondivision

Grounds for Judicial ReviewGrounds for Judicial Review

IllegalityIllegality Ultra Vires – (beyond their powers) prevents public servants Ultra Vires – (beyond their powers) prevents public servants

taking actions for which they have no authority.taking actions for which they have no authority.

Procedural improprietyProcedural impropriety Procedures must be followed. Declaring a special interest is Procedures must be followed. Declaring a special interest is

key in Government, but also the right to a fair hearing. key in Government, but also the right to a fair hearing.

IrrationalityIrrationality If a decision made is deemed unreasonable. If a decision made is deemed unreasonable.

ProportionalityProportionality ‘‘Any action by the Community shall not go beyond what is Any action by the Community shall not go beyond what is

necessary to achieve the objectives of the treaty’ refers to necessary to achieve the objectives of the treaty’ refers to powers of the European Court of Justice and the Treaty of powers of the European Court of Justice and the Treaty of Maastricht over the GovernmentMaastricht over the Government

TaskTask

Can you think of any problems with Can you think of any problems with ‘Judicial Review’?‘Judicial Review’?

What about the political implications What about the political implications of judges making decisions against of judges making decisions against politicians?politicians?

The OmbudsmanThe Ombudsman

Used to denote an individual who is Used to denote an individual who is responsible for dealing with responsible for dealing with complaints against the Governmentcomplaints against the Government

i.e. The Parliamentary Commissioneri.e. The Parliamentary Commissioner Health Service Commissioner Health Service Commissioner Local Government OmbudsmanLocal Government Ombudsman Most of the recommendations are Most of the recommendations are

implemented, although their impact implemented, although their impact has been limited has been limited

Power of the JudgesPower of the Judges

Not only can they not be removed, butNot only can they not be removed, but They can say what they like in summing They can say what they like in summing

up, without fear of being suedup, without fear of being sued Because of their public standing they tend Because of their public standing they tend

to Chair major enquiries, for example the to Chair major enquiries, for example the Scott enquiry into arms to Iraq (1996)Scott enquiry into arms to Iraq (1996)

However, their impartiality (balancing the However, their impartiality (balancing the scales of justice), gives judges their scales of justice), gives judges their legitimacy – Seen as protectors of the legitimacy – Seen as protectors of the rights of citizens rights of citizens

The Legislative and Regulatory The Legislative and Regulatory Reform Bill 2006Reform Bill 2006

According to six Cambridge Law Students According to six Cambridge Law Students in a letter to The Times 14in a letter to The Times 14thth April 2006 April 2006

The so called ‘Dictatorship Bill’ will, The so called ‘Dictatorship Bill’ will, Create a new offence of incitement to Create a new offence of incitement to

religious hatred – 2 years imprisonmentreligious hatred – 2 years imprisonment Curtail or abolish Jury TrialCurtail or abolish Jury Trial Permit the Home Sec. to put people under Permit the Home Sec. to put people under

house arresthouse arrest Allow the PM to sack judgesAllow the PM to sack judges Reform ‘Magna Carta’ Reform ‘Magna Carta’

Representation - 1999Representation - 1999

Level of JudgeLevel of Judge MaleMale FemalFemalee

Lords of Appeal in ordinaryLords of Appeal in ordinary 1212 00

Heads of DivisionHeads of Division 55 00

Lord Justices of AppealLord Justices of Appeal 3434 11

High Court JudgesHigh Court Judges 8989 88

Circuit JudgesCircuit Judges 522522 3636

RecordersRecorders 797797 7878

JudgesJudges 19819877

19919944

19971997 19819877

19919944

19919977

19941994 19919977

House House of Lordsof Lords

9090 9191 7373 8080 8282 100100 65.765.7 65.865.8

Appeal Appeal CourtCourt

8383 7777 7878 8686 8787 8989 63.463.4 62.862.8

High High CourtCourt

6262 8080 8484 7878 8080 8686 5858 59.959.9

All All JudgesJudges

7070 8080 8282 8080 8282 8888

Public School % Oxbridge % Age (years)

Gender and age biasGender and age bias

Recruited after a long career at the Recruited after a long career at the bar and not obliged to retire until 70bar and not obliged to retire until 70

Judges are predominately elderlyJudges are predominately elderly Therefore tend to be ‘conservative’Therefore tend to be ‘conservative’ Sometimes appear more sympathetic Sometimes appear more sympathetic

to ‘White collar criminals’ than the WCto ‘White collar criminals’ than the WC Leniency to men in Rape casesLeniency to men in Rape cases Send more blacks than whites to Send more blacks than whites to

prison for equal offencesprison for equal offences

TaskTask

The increasing use of Judicial Review The increasing use of Judicial Review means an increasingly political role means an increasingly political role for judges for judges

Can we trust them?Can we trust them? Are they representative?Are they representative?

Juries balance Judges opinionsJuries balance Judges opinions

Clive Ponting from the MoD, was Clive Ponting from the MoD, was charged with a breach of the Official charged with a breach of the Official Secrets Act in 1984, (leaked info to the Secrets Act in 1984, (leaked info to the Labour Party), the Judge instructed the Labour Party), the Judge instructed the jury to convict, the Jury acquitted himjury to convict, the Jury acquitted him

David Shaylor was convicted in 2002 David Shaylor was convicted in 2002 despite claiming that he had leaked despite claiming that he had leaked info about Mi5 in the publics interest. info about Mi5 in the publics interest. (The judge imposed a light sentence (The judge imposed a light sentence on him)on him)

TaskTask

How balanced and fair is the Judicial How balanced and fair is the Judicial process in the United Kingdom?process in the United Kingdom?

The PoliceThe Police The Police Force in Britain was invented in The Police Force in Britain was invented in

1828, by Sir Robert Peel1828, by Sir Robert Peel What is the point of having a Police force?What is the point of having a Police force? The police in many countries are feared The police in many countries are feared

and hated – the Brixton Riots of 1981 and hated – the Brixton Riots of 1981 came from hatred of the ‘enemy’ came from hatred of the ‘enemy’

A macho culture exists, with preference to A macho culture exists, with preference to WASP communitiesWASP communities

Damiola Taylor and Stephen Lawrence Damiola Taylor and Stephen Lawrence have been victims of race crime – have been victims of race crime – MacPherson Report said there was MacPherson Report said there was ‘institutional racism’‘institutional racism’

TaskTask

How effective is the Government How effective is the Government scrutinised by the Judiciary?scrutinised by the Judiciary?

Impact of those pesky EuropeansImpact of those pesky Europeans

Britain joined the European Economic Community Britain joined the European Economic Community (EEC) in 1975(EEC) in 1975

Although they had signed up to the 1951 Although they had signed up to the 1951 European Convention of Human Rights in 1966 – European Convention of Human Rights in 1966 – although this was not enshrined in British law although this was not enshrined in British law until 1998until 1998

Up until 1998, only when all avenues of appeal Up until 1998, only when all avenues of appeal had failed in Britain, can individuals appeal to had failed in Britain, can individuals appeal to Strasbourg, no legal aid was available for thisStrasbourg, no legal aid was available for this

Britain has lost more cases in the European Court Britain has lost more cases in the European Court than any other European State!than any other European State!

Now individuals can appeal under European law Now individuals can appeal under European law in British Courtsin British Courts

Impact on SovereigntyImpact on Sovereignty

Technically no impact, as fast track Technically no impact, as fast track methods exist to pass any methods exist to pass any amendments to laws required by the amendments to laws required by the human Rights Acthuman Rights Act

Bogdanor argues however, that Bogdanor argues however, that Judges can now interpret the law in Judges can now interpret the law in terms of the higher law, the terms of the higher law, the European Convention. This is now the European Convention. This is now the fundamental law of the land!!fundamental law of the land!!

ExamplesExamples

In 2001 the European Court upheld an In 2001 the European Court upheld an action by residents in the Heathrow area action by residents in the Heathrow area that night flights involved an infringement that night flights involved an infringement of the basic human right (to sleep)of the basic human right (to sleep)

However, obviously new laws to combat However, obviously new laws to combat terrorism would normally infringe article 5 terrorism would normally infringe article 5 of the convention – the right to Libertyof the convention – the right to Liberty

Article 15 allows the suspension of rights Article 15 allows the suspension of rights in an emergency – how long they are in an emergency – how long they are willing to countenance this is unclear!willing to countenance this is unclear!

TaskTask

European law is now the supreme European law is now the supreme law of the land. Discusslaw of the land. Discuss