Politics – The JudiciaryWhat are the functions of the judiciary?• The role of the judiciary is to uphold the law• Judges must also interpret the law• The judiciary is (in theory) independent and neutral – whichallows judges to perform their designated role in aneffective and fair manner• In practise, the judiciary may also perform a ‘political’ role(e.g. the Law Lords debate issues in the legislature, and ajudge can deem any bill incompatible with the EuropeanConvention of Human Rights)
Politics – The JudiciaryWhat is meant by judicial independence?• “the ability of judges to resist political pressure from theother two branches of government”• Judicial independence is maintained by the fact that judgescannot be easily removed by the government• In addition, the government does not appoint (or train)judges• Judges are appointed on basis of ability, rather than theirpolitical affiliation. They are also unelected – which freesthem from any electoral constraints
Politics – The JudiciaryJudicial independence continued …• By convention, judges are free from undue politicalinterference. As such, politicians should not criticise anyjudge. However in recent years, both Labour and ToryHome Secretaries have criticised judges who passsentences considered to be “too lenient”• The PM has also criticised the judicial system for failing toprotect the law-abiding majority• It is also claimed that the Lord Chancellor and AttorneyGeneral have been pressurised by the Government overcertain issues, such as the reluctance to publish legaladvice relating to the Iraq war
Politics – The JudiciaryWhat is meant by judicial neutrality?• Judicial neutrality implies that everyone is “equal before thelaw”, and is maintained by three factors;• (1) A judge should avoid any political or personal bias• (2) A judge must not benefit personally from the case inquestion• (3) Decisions must be taken on a fair, and impartial, basis
Politics – The JudiciaryAre judges neutral?• In practise, the social background of judges can affect theirjudgment (e.g. judges have been accused of dealing withcertain groups in a negative way, such as animal rightsprotestors)• Political considerations may also affect the position takenby a judge. For example in the Clive Ponting case in themid-1980s, the judge took the side of the government• The judiciary has also become more ‘liberal’ in recentyears, which has to some degree affected judgementsmade in cases concerning terrorism, and asylum
Politics – The JudiciaryWhat are civil liberties?• “Those rights to which we are entitled to as citizens of astate.” Civil liberties are a key component of any liberaldemocracy• Examples include the right to free speech, and the freedomof association• From 1997 to 2001 civil liberties were strengthened by;– The Human Rights Act– The Freedom of Information Act
Politics – The JudiciaryRecent developments• However since 2001, civil liberties have been eroded due tothe government’s attempts to combat the threat ofterrorism, and the high number of CCTV cameras in the UK(1 for every 14 citizens)• Unlike the United States, civil liberties are not laid down ina codified constitution. The first 10 amendments to the USConstitution relate to civil liberties, and are referred to asthe ‘Bill of Rights’
Politics – The JudiciaryHow can judges defend civil liberties?• Via judicial review, if a minister acts ultra vires (e.g. theillegal deportation of asylum seekers)• Judges interpret the law, which can at times result in ajudge upholding civil liberties. For example in July 2005, thepower of the police to order youths back home wasquashed by a decision made in the courts• A judge can often head a public inquiry, which can onoccasions focus upon the issue of civil liberties• The judiciary can also rule on an important test case (e.g.the Bosman ruling provides footballers with greaterfreedom from their clubs)
Politics – The JudiciaryRecent developments• Since the Human Rights Act was passed, a judge candeclare a bill to have contravened the EuropeanConvention of Human Rights (ECHR)• In recent years, judges have become more willing todefend civil liberties due to the emergence of a more‘liberal’ judiciary• The judiciary remains the principal defence against theerosion of citizen’s rights in the United Kingdom. Electedrepresentatives, the media, administrative tribunals andpressure groups also play a role
Politics – The JudiciaryWhat limits are there upon the power of the judiciary?• The law itself. In the overwhelming majority of cases, all a judge can dois interpret the law as it stands. Judges also have to follow judicialprecedent where one exists. However, in a very small number of cases,a judge can set a precedent themselves• EU law, which supersedes UK law (e.g. the Factortame case)• Parliament, which can simply pass or repeal an existing law if they areunsatisfied with a court’s decision• Judges are also constrained by judicial neutrality, which prevents themtaking an active role in party politics. Whilst the Law Lords can debateissues in Parliament, and judges often head independent inquiries (e.g.the Hutton inquiry); the power of the judiciary is relatively weak incomparison to the other two branches of government
Politics – The JudiciaryWhat is meant by open government?• Open government is an important concept in anydemocracy• According to the principle of open government, the publichave the right to access information held by thegovernment. As such, open government actuallystrengthens civil liberties. For example, the public canaccess Cabinet papers from 30 years ago under the ‘30year rule’• Britain has always had a “culture of secrecy”, in contrast toother liberal democracies such as the United States. Forexample in the UK, all ministers take an oath of secrecy
Politics – The JudiciaryDevelopments since 1997• Open government has been enhanced since 1997 due tothe Human Rights Act and the Freedom of Information Act,but many Acts of Parliament restrict access to information(e.g. the Official Secrets Act)• The Liberal Democrats and the Conservatives are in favourof more open government• The pressure group Liberty also campaigns in favour ofgreater openness
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