Focus upon the idea of law enforcement and statutory interpretation. Link the judiciary to the concept of the rule of law and thus to the constitutional importance of an independent judiciary in a modern liberal democracy
Role – law enforcement, statutory interpretation, legality of government decisions, application of EU and HRA, protect citizens rights and liberties and potential for involvement in political process (note reduced by creation of Supreme Court however some judges will still seek to make political points especially with regard to political interference in judicial decision making). Consider issues of relative importance between the above factors.
Role and power of judiciaries
Powers – Judicial Review, Human Rights Act and application of EU law in the UK. Traditionally UK judiciaries only had judicial oversight of decision making by public bodies thus lacking legislative oversight but this has come into force with application of HRA and EU legislation albeit for HRA can only highlight incompatibility and not strike down as in case of US (note can force compliance in case of EU law)
Judicial Review – applies to all public bodies can be granted on grounds of ultra vires, irrationality of decision and discrimination. Most cases filtered out in advance and rare for public body to lose (approx 5%). High profile cases such as Herceptin, Standard Life and BAE have forced government and public bodies to change actions (note latter Government won after appeal in the House of Lords). Has expanded in usage and often cases brought by pressure groups. Latest example of judicial review concerns the proposed High Speed Rail link between London and Birmingham. This is being brought by a local council but there are plenty of NIMBY (Not In My Back Yard) pressure groups who support the idea.
Human Rights Act – incorporated most articles of ECHR into UK law avoiding lengthy and expensive cases taken to Strasbourg (still happens note May 2009 government defeat over holding DNA evidence for people not prosecuted). Courts can only highlight incompatibility in new and existing legislation but this usually enough to force change in policy (see Belmarsh detainees), however parliament can derogate as in case of extending detention to 28 day (potentially 42).
EU legislation – now determined in UK courts although can be appealed to ECJ in Luxembourg.
Judicial Neutrality and Independence
Separation of Powers – basis of concept and importance of within a modern democracy. Note traditional fusion but changes under CRA (decoupling Lord Chancellor, creation of Supreme Court and Independent Appointments Commission).
Extent of judicial independence – increasing independence of appointments (Appointments Commission now appoints lower ranks with Minister of Justice/PM vetoing higher ranks. Appointment of members of the Supreme Court by a selected commission composed of President and Deputy President of SC and a member of judicial appointment bodies), statutory right of independence, security of tenure and independent pay review body (note also judiciary jealousy guard own independence from political interference – Reid and sentencing guidelines). However Parliamentary sovereignty can overrule the rule of law and judiciary primary role is still statutory interpretation.
Neutrality – allegations of activism suggesting judiciary promote natural justice above letter of the law. Consider narrow social background in relation to white, male middle class justice (note proportions of female and ethnic judges)
Rights Liberties and Duties in the UK
Civil rights – entitlements protected by the state; civil liberties – individual freedoms recognised and protected by the state; civic duties – obligations a citizen owes to a state. Note examples of each of the above and the balance required between civil rights, liberties and duties. Consider also attempts by New Labour to extend rights and liberties (HRA, FOI, Equality and anti-discrimination legislation). Note also emphasis upon citizenship duties – active citizenship, citizenship lessons, reduction of benefits for those not seeking employment and citizenship tests for those applying for UK citizenship and residency.
Threats to rights and liberties in the UK post 97 – terrorism and 9/11 (Terrorism Act 2000, Anti-terrorism Crime and Security Act 2001, Prevention of Terrorism Act 2005 and 2006 and Counter Terrorism Bill 2008 – mothballed), crack down on antisocial behaviour (ASBOS and additional police search powers), the expansion of the nanny state (smoking bans, school meals and driving regulations) and surveillance states (ID cards and CCTV cameras). Need to consider how far these have outweighed attempts to extend civil liberties - note watershed date of 2001
Redress of grievances
Divide up into the 3 areas and consider effectiveness of methods
Courts – Judicial Review, HRA, Administrative Tribunals and European Courts – benefits of legal redress usually can force administrative and potentially legislative change but problems of time and cost
Politicians – MPs and Councillors – lobby local and national politicians can be effective if sympathetic and have access to friendly ministers/ civil servants – also can refer cases to relevant ombudsman
Public pressure – media and pressure groups – usually last resort but can build up momentum for change such as post Dunblane and Snowdrop or tightening up local authority controls over vulnerable children in light of Baby P affair.
Note accusations that balance of power swung too far to person raising grievance with HRA seen as promoting rights of criminals (e.g. Afghani hijackers) or creating a complainants charter – Cameron’s intention to create a domestic bill of rights focussing upon responsibilities as well as rights.
Key developments in the judiciary and rights
Use up to date examples such as the DNA data case in Strasbourg to illustrate arguments. Remember importance of high profile legislation such as HRA and CRA to these issues. Also when looking at Judicial Review learn case study examples