Combined Set: Judiciary

Judicial neutrality - definition

The absence of political bias and partisanship; requires an impartial consideration of the evidence.

Judicial independence - definition

Freedom of the courts from the influence of the government, the absence of political interference/ pressure.

Arguments that judicial neutrality exists

• All decisions made must be on the basis of evidence, therefore cannot be justified if biased.

• Judges undergo intense training to eliminate bias.

• In Supreme Court, there are 12 justices, counteracting each others biases

Arguments that judicial neutrality does not exist

• We all have prejudices in some form

• Not socially diverse: vast majority of judges are white, old and upper class, unrepresentative of society

• Lack of diversity means biases won’t be checked effectively, not all voices at the table

3 ways judicial neutrality is maintained

1. Political restrictions

2. Legal training

3. Internal accountability

political restrictions - explanation

Aside from magistrates, judges aren’t allowed to be members of political parties or pressure groups and engage in open, public debate about gov. policy

Legal training - explanation

A long period of rigorous legal training ensures that judges will focus on purely legal considerations. Court decisions are to be conducted fairly and jurors are randomly selected to ensure impartiality

Internal accountability - explanation

Judges are required to justify + explain their rulings.

Process of appeals means judgement of one court can be challenged in a higher court

Supreme court itself offers justifications for its rulings that are accessible to the general public as well as legal experts.

Judicial appointments committee (JAC) enhances neutrality and impartiality

2 ways judicial independence is maintained

1. Security of tenure

2. Sub judice rule

Security of tenure - explanation

Judges cannot be dismissed from their jobs at the whim of politicians, can only be dismissed for gross misconduct against the professional code of conduct.

Their salaries are determined by an independent body, the Senior Salaries review body: Supreme Court justices make about £220,000/ year.

Sub judice rule - explanation

Politicians are not allowed to publicly debate cases that are under consideration in the courts, to prevent undue political pressure.

What is Judicial Review?

A review of a decision made by a public body to determine whether it was lawful.

Examples of public bodies

Local councils, government departments, ministers, police, regulators, schools, hospitals, etc..

Any institution funded by the state.

Who can bring a JR case?

Any individual that has been affected by the decision of the public authority.

When can JR be used?

When all other means in solving the issue have been exhausted, it is a method of last resort.

What are the two criteria that JR assesses?

1. Whether there’s been a procedural misapplication of the law - how a decision has been made, rather than the decision itself.

2. Whether a public body has acted ultra vires: beyond its legitimate powers.

What are the initial stages of JR? (Application and PAP)

1. Must apply for JR within 6 weeks of the alleged procedural error.

2. Pre Action Protocol (PAP): must write a formal letter to the defendant, setting out the proposed claim (attempt to solve outside court)

3. If response to PAP is unsatisfactory, able to make a JR claim.

What are the next stages of JR?

4. Apply for permission to apply for JR: facts of the vase are set out in a form, which is lodged with the Administrative court and papers sent to defendant, who provides a summary of defence (why JR shouldn’t be granted)

5. Court then sends the case to the judge for permission to proceed to JR

6. If granted, it reaches the substantive stage.

7. If the public body is found to have acted unlawfully, their decision is quashed.

Who pays for JR?

The loser generally pays the winners costs - risky if you aren’t well off.

3 Interesting case studies of JR’s use for citizens

1. Tribunal Fees

2. Worboys Parole

3. Bedroom Tax

Tribunal fees - explanation of case study

- In 2017, Supreme Court ruled that employment tribunal fees of up to £1200 were inconsistent with access to justice.

- The JR revie was brought by the trade union Unison, forcing the Ministry of Justice to scrap the fees and reimburse those that had already paid them.

The fees were ultra vires as was seen as indirect discrimination, particularly against women, who appeared at more tribunals.

Worboys Parole - explanation of case

- In 2018, 3 high court judges forced the parole board to reconsider its decision to release the serial sex attacker, John Worboys from prison after a case brought by two unnamed victims.

- A reassessment by the board concluded that Worboys should remain in jail.

- Rare case when the gov supported the JR decision.

Procedural misapplication, not all evidence considered.

The bedroom tax - explanation of case

- In 2019, the Supreme Court ruled against the UK government’s attempts to force the bedroom tax on 155 partners of people with severe disabilities.

- A man who lived with his disabled partner (that needed a separate room for medical equipment) was told that because they lived in rented social housing as a couple, they would only need one bedroom.

- Their housing benefit payments to cover the second bedroom were to be reduced.

- The man (RR) challenged this decision through JR, with the court finding the decision to reduce housing benefit would breach the man’s human rights and was unlawful.

Unanimous decision: was a breach of his right to home and private life under the HRA (The basis of the JR)

Procedural misapplication - should’ve taken the needs of the disabled into account.

Judicial review: landmark Miller 1 Case

In January 2017, the Supreme Court considered a judicial review case that claimed the gov. needed an act before triggering article 50 to leave the EU.

The supreme court held that this was indeed required, example of procedural misapplication.

Landmark Miller 2 Case

In September 2019, the Supreme Court ruled that the gov’s prorogation of parliament for 5 weeks had been unlawful.

The Court said that the prorogation prevented Parliament to carry out its role without significant justification.

Example of Ultra Vires! Executive acted its powers.

Which departments recieved the most JR cases?

- Home Office received the most (200). of these, 16 were granted permission to proceed to the final hearing (8% of applications)

- Local Authorities were 2nd, with 150 received and 26 or 17% reaching the final hearing.

- Ministry of Justice 3rd, with 120 applications but none proceeded to the final hearing.

Statistics of JR

- 610 applications from Jan- March 2021, with 150 reaching the permission stage

- Only 14% of the cases that went into the substantive and final hearing stages were actually successful in finding the public body to have acted unlawfully.

- Only 3% of the total 610 cases made were successful against the public body.

Why is JR so important?

- In the absence of a codified constitution, JR is an important means to check the exercise of power by public bodies.

- Its integral to the HRA, along with many other important laws that impact the lives of people across the country: attempts to redress the imbalance of power between the gov and ordinary citizens

- It secures the compliance of public bodies with human rights law → the possibility of legal accountability for human rights, serving as an important check for preventing these breaches in the first place.