UK Judiciary (copy)

The role of the Judiciary (and supreme court)

-> interpreting and upholding the law
-> Upholding the rule of law
-> Setting common law precedent
-> protect against the vagueness of the system

Where do judges get their power?

Judicial review: Section 4 of the Human Rights Act 1998 - allows courts to make a declaration of incompatability

Key operative principles of the Supreme Court

->Neutrality
-> Independence

How is the independence of the judiciary maintained?

-> Chosen by an independent commission and signed off by the Lord Chancellor
-> Security of tenure: cannot be sacked
-> Highest paid public agent in the country: prevention of bribery
-> Developed by the CRA 2005,with separation from the House of Lords in 20098

Judges - social representation

75% of all senior judges went to Oxbridge

How is the judiciary's independence undermined?

-> Raab still is has to sign off on the judges appointment

-> ongoing confict between judges and ministers; governments began to legislate in ways that attack judicial independence; especially in deportation cases

How is the judiciary's neutrality maintained?

Kilmuir Rules: convention which states that judges cannot participate in public debate about government policy
-> lack of media presence and TV time (anonymous like civil servants)

How is the judiciary's neutrality undermined?

rise of judicial activism - taking on the role of accountability 'legislating from the bench'
(Eg. Lord Neuberger critcised the government and Chris Grayling on the decision to cut legal aids in 2013, Lord Woolf criticised aspects of CRA)

Increased freedom and confidence in challenging the government

Not socially representative; background of privately educated, white middle aged men
-> intuitive predisposition to rule in a way which discriminates against minorities

How can Parliament control/have power of judges?

Parliamentary Sovereignty - AV Dicey
-> No court can void an act of Parliament

The courts can only act when petition in order to look at a case (eg. Gina Miller and the prorogation of Parliament)

New rules through the Judicial Review and Courts Act (2022)

How can the judiciary control/have power over the Executive

Judicial Review -> question the lawfulness of Statuotory instruments/actions which are used by ministers
-> ruling of 'ultra vires'
-> prorogation of parliament
-> triggering of Article 50

HRA act granted judges power to challenge the legimitimacy of government legisilation
-> Belmarsh case
-> Legal challenges to the Rwanda plan are valid

how the executive can control the judiciary

-> Executive decisions (such as the legal aid cut in 2013) can affect the quality of the judiciary and the way in which it functions

-> Parliamentary Sovereignty - Johnson's majority with immigration and terrorism means that judicial power does not matter

-> Limits scope of judicial review through state law

-> New Bill of Rights

Case study of Shamima Begum

-> Supreme Court blocked Shamima Begum's return to the UK

-> Begum initially lost citizenship as she joined ISIS at the age of 15
-> Javid (the then Home Sec) revoked her citizenship on national security grounds through the 1981 British Nationality act

Begum fought against the loss of her citizenship as it illegally made her stateless
-> never applied for dual nationality with Bangladesh

Implications of the Begum Case for the Judiciary

Begum v. Home Department: Limits of judicial review

Judicial activism?
-> Court of Appeal ruled in favour of Begum
-> deprived Begum of human rights to ban her from coming back

Too much executive influence?
->ruled in favour of the Home Secretary
-> judges cannot go against the statute book (eg. 1981)

Case Study: Belmarsh

Detention without Trial: A v Secretary of State for the Home Office
-> the men in the case were supported by both Liberty and Amnesty International

9 men who had been detained at the request of the Uk government without trial or charge protested by the Lords
-> Protested that it is Incompatible with the ECHR - Article 5 (individual right to liberty) and 14 (rights under the convention should be acted without discrimination)

being detained under the Anti-terrorism, Crime and Security Act 2001 (terrorism act)
-> section 21 and 23 allowed the Home Secretary to detain any foreign national without trial

Article 5 - qualified right rather than absolute
-> legitimate interference

Article 3 - no one can be deported if there is risk of torture and inhumane treatment in their home country
-> absolute right

Derorgation order
-> Article 15 of the Convention of Human Rights Act
-> Could suspend the Convention in times of way or public emergencies

Decision:

• The Lords had to decide the threats of national security threatened the life of the nation
• Were the actions of the government proportional to the threat?
• Steps taken under Section 23 of the act were not proportionate to the public threat; British citizens suspected to terrorism but were not charged did not face this same detaination - breach under Article 14

Quashing order - the derogation order was no longer under effect

The 9 detainees stayed in prison until March 2005
-> Law Lords did not have the legal power to release them

Lord Hoffman: 'the real threat to the life of the nation, comes not from terrorism from laws such as these'

Parliament's modifications:
Prevention of Terrorism Act 2005
Terrorism Prevention and Investigation Measures Act 2011

Judicial Review and Courts Act (2022)

Changed judicial review

1. giving the courts power to award suspended quashing orders
   -> this would mean the government would get the opportunity to modify its initial decision and reduce risk of repeating ultra vires in the future
   -> BUT: concerns on the rule of law and restraint on government power; the government can call on Parliament to legislate to make something precisely unlawful, lawful, because it fulfils the executive's wishes and therefore be unavaliable to judicial review

Case Study: Bull vs Hall (2013)

Article 9 of the ECHR - freedom of thought and religion
-> Bull's hotel would not take bookings of double bed bookings on the grounds of not wishing sex before marriage
-> Hall and his partner booked a double room and were denied so sued on the basis of discrimination against sexual orientation

SC: did the Bull's policy amount to direct or indirect discrimination?
-> direct; the intent was discriminatory
-> indirect; the effect is discriminatory

ruling - direct discrimination due to the fact that the Marriage Act 2013 had not been passed and there was no way that any gay couples could not fulfil the quota

Case Study: HM Treasury vs Ahmed

2010:
-> government wished to freeze the assets of suspected terrorists
-> court ruled that the government did not have the legal power to do this as it infringed the presumption of innocence in common law and HRA

Case study: Miller vs Davis (the secretary of state for exiting the EU)

Gina Miller argued that the UK government could not trigger Article 50 without a vote or deliberate debate in Parliament
-> Davis countered with the use of prerogative meaning Parliament did not need to be consulted

Court ruled in favour of Miller -> since referendums are non-binding, the government could not ignore the sovereignty of Parliament
-> commons voted on triggering Article 50 (in which they failed)