SEPARATION OF POWER/JUDICIAL INDEPENDENCE Open in Oct 2009 and replaced Appellate Court of House of Lords. Objective of creating clearer distinction between legislative and judicial functions of the state. Court has acted as an important constraint on the executive...
JUDGES HAVE CRITICISED EROSION OF CIVIL LIBERTIES The 2001 Anti-Terrorism Act was declared unlawful by 8/9 Lords that heard the case - extremely willing to challenge government powers when individual rights are threatened. JUDGES HAVE BECOME MORE POLITICALLY INVOLVED...
INCREASED POLITICAL ROLE AFFECTS EXEC/PARL PARL STILL SOVEREIGN
HRA 1998 CRA 2005 POLITICAL ROLE
CONSTITUTIONAL REFORM ACT The SC was established under the Constitutional Reform Act (2005) – opened in 2009. Established a much more independent appointments process - created new Judicial Appointments Commissions, made up of legal professionals and several...
CONVENTIONS There has long existed a constitutional convention that the executive should not criticise judges or their decisions. In return, judges are expected by convention to not comment outside the court room on government legislation. It is arguable that both...
UPHOLDS RULE OF LAW & JUDICAL REVIEW The process allows groups to challenge the actions of, for example, government ministers, police officers or local councils - it is the role of the judiciary to uphold the rule of law and ensure that such bodies act within the...
PARLIAMENTARY SOVREIGNTY In the case A and others v Secretary of State for the Home Department (2004), the Law Lords declared that the indefinite detention of suspected terrorists at Belmarsh prison was incompatible with Article 14 of the ECHR because the Act...
UK LAW Human Rights Act 1998 and Freedom of Information Act 2000 - judges can go against Parliament if they threaten liberties. Belmarsh case 2004. EU Judges can issue a Declaration of Incompatibility if UK laws don’t comply with EU laws. The Factortame case (1990)...
EU EU laws can’t be enforced by force, so Parliament doesn’t in theory have to follow Declarations of Incompatibility. Parliament refused to follow EU law and give the vote to prisoners. SC Judges can still be pressured from other sources. Theresa May criticised...
SECURITY OF TENURE Appointed for an open-ended term, only requirement is they retire by 75, politician cannot influence by threating to sack/suspend them, can only be removed through impeachment proceedings that require a vote in both houses of parliament (never)....
HIGH-LEVEL TRAINING Substantial experience and training as barristers – personal bias put aside – can be moved away from more serious cases whilst performance is monitored. g. before Lord Reed was in SC he was senior judge in Scotland for 13 years. LEGAL...
BACKGROUND OF JUSTICES The main argument is that judges have come from a narrow social and professional background. The majority are from middle and upper-class families. They are almost exclusively male and the majority have been educated at independent schools. Up...
JUDICIAL REVIEW SC able to question the lawfulness of decisions made by public bodies, such as local councils, government departments, police forces or health authorities. However, it’s limited by parliamentary sovereignty. Al Rawi v Security Service (2010) – gov...
HRA In 1998, the ECHR was incorporated into UK law by Blair gov, stating that all legislation, actions and decisions made by any decision makers had to conform to the convention. This has meant citizens can assert their rights more forcefully. In cases where human...
OPPOSITION FROM JUDGES CRITICISM PUBLIC INVOLVEMENT
LACK OF SEP OF POWERS The ancient office of Lord Chancellor was a member of all three branches of government. His position was the most dramatic example of the lack of separation of powers in the UK. If Britain were to claim to be a modern democracy it had to rid...
SUPERIORITY OF EU LAW There were two famous cases that established that EU law was superior to UK law. One of these was the Factortame case in 1991. It ruled that the 1988 Merchant Shipping Act that limited the rights of foreign ships to fish in British waters...
JUDICIAL REVIEW The rapid growth of judicial review can hold up the work of democratically elected representatives. In 1982, 685 applications for judicial review, in 2013, there were over 15,700 applications. Critics argue that judicial review can unnecessarily hold...
JUDICAL REVIEW V. Dicey wrote that the “twin pillars” of the British constitution are parliamentary sovereignty and the rule of law. The rule of law stresses the importance of law over arbitrary power. The rule of law requires decisions and actions to have a clear...
VACANCY Vacancy arises. 5-member selection commission convenes to consider possible nominees – based on merit. To be considered you must have held high judicial office for at least 2 years/qualifying practitioner for 15 years. Vacancies filled by an ad hoc 5-member...
GREATER SEP OF POWERS Before Oct 2009, the highest court of appeal comprised of 12 Law Lords who sat in the Appellate Committee of the HofL - there were concerns over the incomplete separation of powers (partial ‘fusion of powers’) – specifically the presence of the...
NO PUNISHMENT WITHOUT TRIAL The Anti-Terrorism Act (2001) went against this as it allowed for indefinite detention of terrorist suspects. A and others v Secretary of State for the Home Department(2004) held that the indefinite detention of foreign prisoners...