The judiciary and civil liberties

Political role of the judiciary Dispensing justice- trials and hearings to be conducted in a way to ensure all parties get a fair hearing and that the spirit of the law is applied. Where statute not clear it is the task of the judges to interpret the meaning of the law (judge made law) Case law- how should laws against inciting others to commit crime, race crime operate in specific circumstances- once application in specific case established this sets a precedent (judge made law) Declaring common law- rules of behaviour which have developed solely by tradition- to deal with disputes such as inheritance, commercial practices, rights- where no statute or clear common law the judge takes evidence and decides what the common law is (judge made law) Sets a precedent. Judicial Review- court reviews decisions made by state or any public body in relation to its citizens. Court may declare ultra vires. Passage of the HRA increased boost as it meant courts might review actions which contravene the ECHR. Public Enquiries where judges called on to hold enquiries into matters widespread concern- Leveson enquiry into phone hacking In disputes concerning competence of the devolved systems the Judicial Committee Privy council decides who has jurisdiction. Sentencing since 1990s home secretaries and judges clash over sentencing with latter wanting to retain independence action. Legislation has introduced minimum sentencing in certain areas

Key principles Sovereignty of Parliament-source of all political authority. If legislation deemed a breach of the HRA all judges can do is a declaration to the effect thereof Rule of Law – applies to all and all entitled to a fair trial Judicial precedent-when judge makes law other courts must abide by interpretation only a higher court can overturn. Primacy of EU law-the duty of the British courts to enforce EU law and challenge the UK legislation where it is incompatible.

Independence of the judiciary If judges are not independent a danger government will exceed its powers Citizens need to feel they will be based on principles justice and rule of law Independence implies judges are selected on a neutral basis to prevent collusion between judiciary and government

How independence is maintained Security of tenure and this includes their salaries Contempt of Court- government must not interfere with result or comment on case in public/Parliament. Appointment is made by non political Judicial Appointments Commission and appeal Court and Supreme Court by cttee comprise senior members those courts and from judicial appointments commissions for England, Scotland NI All judges have had lengthy careers as courtroom lawyers

Threat to independence Government retains control over legal system via ministry of Justice Indirect pressure from ministers over sentencing policy and protection of rights. Prime minister final say over appointment judges

Are judges neutral Yes Increasing number of judgements which in favour of individuals and minorities` HRA a further opportunity for judges to challenge the state. Setting aside social background evidence suggests a succession of independent-minded liberal judges who are willing to criticise government for attack on civil liberties. Fact criticism from both main parties suggests judges are neutral No Narrow social and educational background- Griffith in the Politics of the Judiciary argued that judges naturally inclined to favour interests of the state and public order against interests of individuals and minorities. Many of senior judges also seats in House of Lords which was seen as a conservative institution

Threats to civil liberties Legislation 1980s/90s which increased powers of law enforcement agencies 1980s trades’ union legislation Increasing amount of information held on private citizens by police, social security etc…The British government was especially secretive in absence of FOI Tension between government and media over broadcasting rights Belief the ability of Parliament to rein in executive power was weakening. Difficulty of seeking redress via ECHR- Strasbourg a long and costly process

Progress towards open government 1978 departmental select cttees which had power to question ministers and civil servants and call for official papers. Data Protection Act citizens access to computer files which hold info on them exceptions such as police records. FOI With exceptions, right to see any public documents. Media exploit the act to obtain more background info on government than before and citizens access to papers detailing their dealings with the state. FOI important in revealing expenses scandal 2009.

The Human Rights Act Does not affect parliamentary sovereignty- however the court can declare act of Parliament incompatible with European Convention and Parliament may amend legislation this happened 2004 with the anti terrorism act 2001 All acts by Scottish Parliament, the regional assemblies, local govts must be compatible with ECHR. When a bill is introduced to Parliament, the minister responsible is required under section 19 of the HRA to certify whether or not the proposed legislation is compatible. This is important as he has to consult with civil servants on whether it is. The JCHR then considers the bill clause by clause and if there is a dispute between its interpretation of compatibility and that of the minister it is open to debate by Parliament With passage of the HRA a joint parliamentary cttee established to monitor proposed legislation to see if compatible with the act. On extended pupil searches in the education bill of present government, the JCHR achieved a more circumscribed extended pupil searches to make them more compatible with the HRA. Since signing up to the social chapter of Maastricht Treaty 1997 an extension of economic and employment rights in the UK As a signatory of the European Convention Human Rights, it is inconceivable that the government will hold out or it would be forced to resign from the convention. As part of the Coalition Agreement 2010, the Conservatives agreed to drop a pledge to repeal the HRA in place of establishing a Bill of Rights Commission. The remit of the latter is limited by the fact that anything which replaces it must be compatible with the ECHR if the UK is to remain in the ECHR. Also the devolved assemblies must comply with the HRA.

Why has there been growing conflict between the government and the judiciary? Home Secretaries have tried to obtain control over sentencing in serious crime by imposing minimum tariffs. This has caused conflict with judiciary. Judges concern at creation of the Sentencing Council 2010 to set out guidelines for judges. Senior judges such as Lords Woolf and Phillips criticised erosion ciivl liberties. The 2001 Anti terrorism Act as unlawful and 2003 Criminal Justice Bill as it allowed for person to be tried for same crime twice, dropping of a jury and allowing past convictions as evidence. Politicians have criticised judges for speaking out. Blunkett and Clarke criticise judges for being too politically active

How effectively do judges protect rights For HRA given judges a codified set of rights to judge whether executive and legislation threatens rights. Act is binding on all but Parliament Judiciary is independent Easier for citizens to seek judicial review Supreme Court showing signs of greater independence than Lords The case of Paul Chambers. The latter was convicted in 2010 off breach of the 2003 Communications Act which prohibits sending by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character. He had tweeted in frustration Crap! Robin Hood airport is closed. You’ve got a week to sort out this shit together otherwise I’m blowing the airport sky high!!!. A high court ruling overturned the original conviction in 2012 and represents a significant shift in the legal system’s treatment of social media sites, signalling that comments should be read in the context of online communications. Lord Judge’s ruling was greeted as a victory for freedom of speech. Against Sovereignty of Parliament remains HRA not entrenched and does not bind Parliament No pre legislative review- judges cannot influence legislation before presented to Parliament Judges lack democratic legitimacy Where judges believed to be obstructing government the law can be amended to force them to comply with government wishes