Judiciary Exam Question

Judiciary Essay Questions
With reference to the source; what is the rule of law? (5)
As mentioned in the first paragraph of the source Rule of Law is a set of principles asserting that all citizens should be treated equally under the law; including government itself. It also means that every citizen is entitled to due process of law and a fair trial. Overall Government should be conducted according to the recognised legal code and the constitution. This can also be called procedural justice.
With reference to the source and your own knowledge; explain how the independence of the judiciary is guaranteed. (10)
An essential feature of any healthy democracy is that the judicial branch should be independent of the government. There are four main ways in which judicial independence is guaranteed in the UK. These are: Security of Tenure; Sub Judice; Independent Appointments and the Background of senior judges.
In paragraph 3 of the source the reference to the appointment of judges is guaranteeing independence as judges are appointed ‘independently’ of government. There is a specific ‘Judicial Appointments Commission; which is politically independent. In the case of Supreme Courts and Appeal Courts; judges are appointed by a specific committee comprising senior members of those courts and representatives from the Judicial Appointments Commission from England; Scotland and Northern Ireland. With these appointments there are almost little to no political interference.
In terms of security of tenure this is the principle that says that judges cannot be removed from office on the grounds of the kind of decisions they make. The only reason a judge can be removed is if he can be proven to be corrupt as a result of personal conduct incompatible with being a judge. It follows therefore that judges are free to make decisions without fear of dismissal; even if such decisions offend the government. For the same reason judges are appointed on the understanding that their salaries cannot be reduced if they make contentious decisions.
Thirdly and finally in paragraph 2 there is a reference to the Lord Chancellor being bound to preserve the principle of judicial independence. This ties in with Sub Judice or in other words Contempt of Court. It is a contempt of court for any servant of the government to attempt to interfere with the result of a court case or even to comment on such a case in Parliament or public. This rule is designed to prevent any political pressure being placed upon judges. If such a servant were to act in such a manner they face the risk of having legal action taken against them.
To what extent can judges check the power of the executive and the legislature? (25)
It is important at the outset to distinguish between two definitions of the judiciary. The first is a wide description that includes all those officials who are concerned with the dispensation of justice within the legal system. The other; narrower definition deals only with those judges who are directly involved with the process of law making and politics.
The maintenance of civil liberties is generally seen as a defining feature of a liberal democracy. This is because civil liberties establish the relationship between the state and individuals. In doing this they provide citizens with protection from government interference. The UK’s commitments to civil liberties has traditionally been weak by comparison with countries such as the US; where they are formally enshrined in constitutional documents. UK citizens have ‘residual rights’ meaning they can do anything that the law does not forbid. During the 1980s and 90s especially; people in the UK felt that their rights as citizens were under threat due to the expansion of the police force and authoritarian policing by the Tory governments. Back then there were only limited ways in which to seek redress: contacting your MP; appealing to a tribunal or complaining to an ombudsman. However in recent years the protection of civil liberties has increasingly fallen to the courts with the introduction of the 1998 Human Rights Act which incorporates the European Convention on Human Rights.
Judicial review is an important way in which judges can check the power of other public bodies as well as government. In the US; judges have far reaching powers due to the nature of their constitution (codified and entrenched). In the UK however; the absence of a codified constitution; judicial review is not as far reaching. In particular Judges cannot overturn Acts of Parliament because if the principle of parliamentary sovereignty. Nevertheless; they can determine the lawfulness of actions that are carried out on the basis of delegated legislation. This is done using the doctrine of ‘Ultra Vires’ or in other words ‘beyond the power’ which refers to civil servants having acted illegally because their actions have no statutory authority. Judges can decide; quite simply’ that other political actors are acting beyond their proper powers. Judicial review has proved to be in important in which judges can protect civil liberties and ensure that ministers do not act in ways which are illegal; improper; irrational or simply disproportional.
The Human Rights Act (1998) which came into effect in 2000; incorporated the European Convention on Human Rights (ECHR) into UK law. The act was a major constitutional reform in that it marked a shift in the UK in favour of an explicit and codified legal definition of individual rights. In doing so it substantially widened the capacity of the judiciary to protect the civil liberties and check the exercise of executive power (and In some respects legislative power). The HRA’s main provision is that all courts should interpret all legislation in such a way that is compatible with the ECHR. When a court believes that legislation cannot be reconciled with Convention rights; it issues a ‘declaration of incompatibility’. This forces Parliament to either revise the legislation in question and bring it into line with the convention; or to set aside certain provisions through the process of ‘derogation’. An example where the HRA and ECHR has been used to protect individual rights was when Islamic Cleric Abu Qatada used the Court of Appeal to appeal against deportation to Jordan on the grounds that evidence used to convict him would be the result of torture.
Since Parliament is the source of all political authority it cannot be overruled by the judiciary. In particular this means that judges cannot legally defy the legislative will of the government. Even if judges believe that a law Is an offence to human rights or discriminates unfairly against a particular group within society; they do not have the power to set this law aside- they are legally obliged to enforce it. They may of course give a critical opinion and suggest a change in the law but that is as far as it goes. The advent of the HRA in 2000 has given the courts a great deal of ammunition in their defence of individual rights; but even so they cannot overturn a statute that has been properly passed by Parliament.
Criticisms of the HRA have come from various directions. First of all it is commonly argued that the Act allows judges to overstep their traditional role. Throught their interpretation the HRA judges are effective able to rewrite legislation. This arguably makes judges too strong as they are similar to that of US judges whom are allowed t encroach on the policy making role of politicians. Secondly Tories in particular have called for an amendment or the removal of the HRA on the grounds that it constitutes an abstract set of principles which once applied leads to confusion and bad decisions.