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The Judiciary of the UK

beth !! Politics A level English

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The Judiciary of the UK

  1. Structure of Judiciary

    • Supreme Court
      • Court of Appeal
        • High Court
          • Crown courts, county courts, magistrates courts and tribunals
    • Courts can overrule those below them - hierarchy
  2. Principles that underpin Judiciary

    • Rule of law
      • Key doctrine of const
        • A.V Dicey - Rule of Law = pillar of const
    • Judicial Independence
      • Based on 5 main pillars
        • Tenure
          • Retire at 75, can't be influenced by politicians by threats of being suspended or sacked
        • Salary paid from Consolidated Fund
          • Politicians can't manipulate judges salaries to control them
        • Contempt of Court
          • Prevents media, MPs etc from speaking out to try and influence jury
        • Independent Judicial Appointments Commission
          • Under Constitutional Reform Act 05
          • Greater transparency of appointments, reduces political bias in process
        • Professionalism
          • Most do long apprenticeships & take lots of pride in reputation, unlikely to defer to politicians if they think it will compromise integrity
    • Judicial Neutrality
      • 4 main ways
        • Relative anonymity
          • Until recently senior judges rarely spoke out publicly on issues
            • Expected to avoid being drawn into public defence of rulings or criticism of gov
        • Restrictions on political activity
          • Judges not permitted to campaign on behalf of party or pressure group
        • Legal basis for judgements
          • Judges expected to offer explanation of how ruling is based in law
            • Less room for personal bias
        • High-level training
          • Regulated by Law Society
            • Promotion to high ranks usually reflects view that they're able to put personal bias aside
  3. UK Supreme Court

    • Set up 2009 - Const. Reform Act 2005
      • Replaced Law Lords as highest court in land
    • Physically and institutionally separate from Parl
      • Separation of powers
        • Free from political pressure
    • 12 Judges
      • To qualify must have served 2yrs as senior judge or 15 as barrister/solicitor
      • Have tenure
      • Composition = criticised for lacking diversity
        • HOWEVER 2018 pres. was Lady Hale
    • Appointment Process
      • Designed to be non-political & based on merit
      • Vacancies filled by special selection commission
        • Committee made up of...
          • Pres & Deputy Pres of Court
          • Member each from
            • Judicial Appointments Commission
            • Judicial Appointments Board for Scotland
              • SHOWS: SCourt oversees all courts in UK
            • N.Ire Judicial Appointments Committee
        • Commission consults certain senior judges not seeing UKSC
          • Senior judge makes rec on merit alone
      • Lord Chancellor can accept or reject nominee but can't put forward their own
    • Main roles
      • Final court appeal for all UK civil & criminal cases
        • General public & issues of National importance
      • Enforces ECHR in UK, reduce number of UK cases heard in ECHR
      • Final court of appeals for some overseas territory & former colonies e.g. Jamaica
    • UKSC Key Cases
      • Al Rawi v Security Services (2011)
        • Key Features
          • In certain terror trials are UK security service allowed to give evidence in secret?
          • Should protecting national security beat long held legal principle of open justice?
          • A case concerning Human Rights (to fair trial) and extent of gov power to alter normal judicial procedure
        • Outcome & significance
          • Defeat for UK gov
            • Victory for supporters of open justice
          • Court believed even in srs cases both sides must hear and see all evidence put to judge
      • Trump Intl. Golf Club Limited v Scottish Ministers (2015)
        • Key features
          • Had Scot gov exceeded power in allowing wind turbine to be made near golf club owned by Trumps business?
          • Ultra vires case
        • Outcome
          • Court in fav of Scot gov
          • Scot gov hadn't exceeded power
      • Miller v Secretary of State for Exiting the European Union (2017)
        • Key features
          • Must gov get Parl approval to invoke Article 50 to leave EU following ref?
          • Case about constitutional matters
          • Must devolved assemblies be consulted about A50?
        • Outcome
          • Parl must be allowed a vote
            • Devolved don't need to be consulted
          • Reinforced principle of Parl Sovereignty
            • Both victory & defeat for gov
          • Not a pro-remain ruling by Court but an interpretation of constitution
  4. Ultra Vires

    • Acting beyond powers
      • Beyond power of law & illegal
      • Ultra Vires acts must be reversed
    • Decision often made after judicial review
    • Judicial Review
      • Judges review legality of decision/action of public bodies
      • Challenges = to way decision was reached, not the morality of outcome
  5. UKSC and Europe

    • Under HR Act 1998 UKSC = power decide whether action by public body or law breaches ECHR
      • If breach = found UKSC = declaration of incompatibility and action must be reversed
    • UKSC obliged to accept precedents of ECtHR but some cases have been sent back for reconsideration
      • E.g 2009 Horncastle case
    • Separate to ECHR UKSC must take EU law into account when hearing cases that concern European treaties
      • UKSC can sent cases to European Court of Justice for final verdict
    • Brexit only impacts UKSC and EU law, now UKSC and ECHR
  6. Impact on Gov, legislature & policy making

    • UKSC acts as check & balance on gov & parl in regard to legislative and executive actions
    • Under HR Act 1998 gov bills must incl. statement saying minister agrees bill is compatible with HR Act or that it isn't but they're proceeding anyway
      • Makes gov and legislature more careful when drawing up bills
    • On rare occasions UKSC ignore ECHR rulings
      • E.g. 2005 Hirst v UK ECHR deemed blanket ban on prisoners voting violated HR but parl didnt change law
        • Links to franchise & suffrage
  7. Importance & Diversity of Judiciary

    • Is the Judiciary too powerful?
      • YES
        • Unelected & hard to remove
        • HRA 1998 means judges can get involved with politics & clash with gov, undermines parl. sov & democracy
        • Judges make decisions that have have huge impact incl life & death
          • E.g. Great Ormond Street v Yates & Gard (2017) - Charlie Gard case
        • Judicial review means judges can force gov & public bodies to change policy
      • NO
        • Judges need to be independent to be impartial
        • Judges only interpret laws passed, parl chose to sign up to ECHR
        • Prevent arbitrary gov.
        • Judges are experienced legal professionals trained to be impartial, better suited to easily swayed politicians
    • Diversity
      • Evidence of lack of diversity
        • No Black or Asian judges in UKSC in 2018
          • 7% of all judges in 2017
        • All come from similar social background
          • 75% of 12 UKSC judges in mid 2018 = Oxbridge educated
        • Under-representation of women
          • mid 2018 UKSC = 25% women, 75% men
      • Does a lack of diversity matter?
        • YES
          • Judges don't reflect modern British society
            • May make it harder for them to understand cultural context of some cases
          • Little improvement in diversity in last decade e.g. UKSC
          • Reduces public trust in judiciary, leads to biased pro-establishment decisions
          • More input from directly elected reps in appointments would increase diversity
        • NO
          • Chosen for expertise, not to be representatives
          • Judges don't need to empathise, only apply law correctly
          • Diversity = growing low in hierarchy, will reach top eventually
          • Public would rather have judicial decisions in hands of professionals & no proof of establishment bias
          • Input from reps would lead to politicisation of judiciary
            • Destroys neutrality

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A level Politics Mind Map on The Judiciary of the UK, created by beth !! on 25/03/2019.
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beth !!
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