The Judiciary

The Judiciary

1. JUDICIARIES

   • DEFINITIONS: collective term to describe judges of the UK, 3rd branch of gov.
   • ROLES
   • FUNCTIONS

2. REDRESS OF GRIEVANCE

   • Ombudsman (Parliamentary administration for commissioner)
     • A: Only deal with complaints if there is no other way (lots of time for it), challenges injustice within the system, cheap, sets legal precedent (can apply to more than one case), decisions made are usually implemented
     • D: Cases have to be referred by an MP, takes 70 weeks for a decision and it doesn't change the law, is not binding
   • MPs
     • A: Take issues to Parliament, can influence bodies for you (representing function)
     • D: May prioritise particular complaints, might not have time, might not accept the complaint if it goes against the party line, limited resources
   • Local councillor
     • A: Similar influence and access to Ombudsman
     • D: Only accept local issues
   • Media
     • A: Widespread public awareness, Politicians do not like bad publicity so will act faster.
     • D: Take stories out of context, exaggerate and twist things, make complaints seem false and ingenuine
   • Pressure Groups
     • A: Fight for a cause, not influenced by a party, public awareness, high success rate.
     • D: Small scale, limited reach, lack of credibility
   • Judicial Review
     • A: Directly challenge the gov, gov can be brought into court on the same grounds as an ordinary person, can force gov action
     • D: Cannot change the law, only 1/3 cases reach final review, judges could be biased (not impartial), reluctant to get involved with the day to day running of the gov

3. RIGHTS, LIBERTIES AND DUTIES

   • NATURE
   • PRINICPAL RIGHTS AND DUTIES
   • THREATS TO RIGHTS

4. ROLE AND POWERS

   • ROLE (see Judiciaries)
   • STATUTORY INTERPRETATION: interpreting the meaning of current legislation
     • Literal Rule: words in statute are given their ordinary and natural meaning, not analysed for further meaning (may result in harshness)
       • Berriman case 1946: railway worker was killed whilst oiling due to there being no 'look out' point. Wife would not get compensation due to the act stating that 'look outs' were only issued for those 'repairing' or 'relaying' the line and oiling did not come under either.
     • Golden Rule: can chose between the meanings of a word, can chose apparent meaning or modify the words to avoid a problem.
       • Re Sigworth 1935: defendant had murdered his Mother, law said the next of kin would get the deceased's estate, literal rule would have proved an unjust result, so applied this rule so he did not get the estate.
     • Mischief Rule: Manipulating the law, using loopholes
       • Laid down in Heydon's case 1584: 4 issues when interpreting law (examine common law prior to act, locate mischief or defeat in common law, identify the remedy Parliament mean to propose to eliminate the mischief, and give effect to remedy.
   • JUDICIAL REVIEW: Judge reviews the lawfulness of a decision made by a public body (challenge how it was made not the decision itself)
     • Decisions of regulatory bodies, prisoners rights, decisions of immigration authorities, decisions relating to welfare benefits and special education
   • CONSTITUTIONAL REVIEW: Challenge the legality of laws based on the constitution. Also has power of 'quasi-consitutional reviews (given to the by Parliament) under the European committees Act 1972, the Human rights Act 1998 and the UK's devolution legislation.
     • ECA: Parliament is limited (cannot legislate contrary to EU and courts have power to disapply national law)
     • HRA: legislation permits courts to interret legislation to achive compliance with the Convention rights. Cannot change the legality of an Act of Parliament, test legislation for compliance with HRA standards
     • CRA 2005: can determine legal disputes relating to 'devolution issues' arising out of transfer of power to devolved bodies

5. JUDICIAL NEUTRALITY AND INDEPENDENCE

   • The highest court of appeal used to be in the HOL (Law Lords): Supreme court was set up in 2009 with the same powers of the Judicial Committee of the HOL
   • APPOINTMENT OF JUDGES
     • Before the constitutional reform act: Judicial power was with the Lords, they were chosen by the PM on the advice of the lord chancellor (High court and Junior judges were appointed by Lord Chancellor)
     • After the CRA: Judicial Appointments Commission was set uo 2006, they select candidates for judicial positions (Lord Chancellor still has a role in choosing senior judges as they can reject the JAC's fist recommendation but no more than 2)
     • Recommendations are now made based on merit
     • For the Supreme court: the President and deputy President of the court work with the JAC to appoint members (approved by the Lord Chancellor and the PM)
     • To remove political influence
   • Relationship wit the executive and the legislature
     • Judiciary checking the Legislative: Judicial Review (can decide whether a law is allowed or how it should be applied
     • Judiciary checking the Executive: Judicial Review (can declare actions illegal)
       • BREXIT: Referendum did not permit ministers to trigger Article 50 and only an Act of Parliament can take away the links to the EU
     • Executive checking the Judiciary: Appeals (but can only make decisions on cases that are presented to them)
     • Legislative checking the Judiciary: Parliamentary Sovereignty