 starter activity The Christian Institute requested a judicial review into the BBC’s decision to screen Jerry Springer the Opera in January 2005 on the grounds it was blasphemous. Eventually the High Court overturned the appeal.

Are judges too powerful? To find out what is meant by ‘judicial review’ To examine reasons for growing number of cases of judicial review in recent years  Aims

 Your task What is meant by ‘judicial review’? What is meant by ‘judicial review’? In what circumstances can judges initiate a judicial review? In what circumstances can judges initiate a judicial review? List the problems associated with the judicial review process List the problems associated with the judicial review process

Judicial review Process where judges decide whether public bodies (including govt) have acted lawfully Process where judges decide whether public bodies (including govt) have acted lawfully

Process Judicial review is granted on three grounds Judicial review is granted on three grounds If a public authority has exceeded its statutory powers, (ultra vires,) If a public authority has exceeded its statutory powers, (ultra vires,) Where there has been a procedural impropriety Where there has been a procedural impropriety Where an action was ‘irrational’ Where an action was ‘irrational’

Problems The willingness of judges to intervene in matters of public policy The willingness of judges to intervene in matters of public policy Unelected judges making judgements on elected bodies Unelected judges making judgements on elected bodies Are judges sufficiently trained? Are judges sufficiently trained? Difficult for individuals to initiate the process Difficult for individuals to initiate the process Only 1/3 of actions reach final hearing Only 1/3 of actions reach final hearing Only 1 in 6 cases succeed Only 1 in 6 cases succeed Enormous cost Enormous cost

Can senior judges ever be truly independent ? Judges cannot be removed from office except for misconduct. Judges cannot be removed from office except for misconduct. They do not have to face any election process. They do not have to face any election process. The media is forbidden from commenting on legal cases while they are in progress they can only report on them). The media is forbidden from commenting on legal cases while they are in progress they can only report on them). These factors should ensure they remain free from political pressure. These factors should ensure they remain free from political pressure.

Pull the other one: Ken Clarke guffaws with laughter with the Lord Chief Justice Lord Judge

Can senior judges ever be truly independent ? Senior judges have been chosen by the Lord Chancellor. He is both a judge and a politician. He is a member of the cabinet appointed by the PM and as such he owes his office to him. Senior judges have been chosen by the Lord Chancellor. He is both a judge and a politician. He is a member of the cabinet appointed by the PM and as such he owes his office to him. Therefore it could be argued that judges have been politically appointed. Therefore it could be argued that judges have been politically appointed. The social elitism of judges calls into question how far they truly reflect society at large, although the same could be said of MPs, ministers and civil servants to varying degrees. The social elitism of judges calls into question how far they truly reflect society at large, although the same could be said of MPs, ministers and civil servants to varying degrees.

How does the process of judicial review operate in UK courts ?  UK courts interpret the precise meaning of Acts of Parliament.  They also can carry out a ‘judicial review’ of government actions if:  The government has acted beyond its legal powers (ultra vires).  If the government has acted in a way that can be shown to be improper, unfair or irrational.

How does a judicial review take place ?  If an individual or organisation feels aggrieved by the actions of the government or a public body they can apply to the High Court for a judicial review to take place.  Only about one third of these applications usually reach a final hearing.  There is always a backlog of cases awaiting a hearing and the process can take years.

Judicial Review in the UK 1. Illegality Doctrine of ultra vires (‘beyond powers’) Doctrine of ultra vires (‘beyond powers’) Did ministers/public bodies exceed powers set out in enabling statutes? Did ministers/public bodies exceed powers set out in enabling statutes? 2. Procedural impropriety Have procedures been followed correctly? Have procedures been followed correctly? Unbiased & fair hearing Unbiased & fair hearing 3. Irrationality Is a decision ‘unreasonable’? Is a decision ‘unreasonable’? Rarely used as ground for appeal Rarely used as ground for appeal 4. Proportionality Was a decision disproportionate? End achievable with less draconian means? Was a decision disproportionate? End achievable with less draconian means? Responsible for major growth in judicial review Responsible for major growth in judicial review

What action can a judicial review take ?  If it can be proved that the government has acted outside of their powers then their actions or decisions can be over-turned (quashed) by the courts.  A public body (eg a local education authority) can be forced to carry out an action (eg provide a place at a special school for a disabled child)  An injunction can be issued to stop an action taking place (eg a newspaper running a story or a strike from occurring if a trade union has broken the law).

Problems with judicial review Should judges from an elite social class background be responsible for ruling on laws passed by elected politicians in the House of Commons ?

What action can a judicial review take ?  If it can be proved that the government has acted outside of their powers then their actions or decisions can be over-turned (quashed) by the courts.  A public body (eg a local education authority) can be forced to carry out an action (eg provide a place at a special school for a disabled child)  An injunction can be issued to stop an action taking place (eg a newspaper running a story or a strike from occurring if a trade union has broken the law).

Problems with judicial review Should judges from an elite social class background be responsible for ruling on laws passed by elected politicians in the House of Commons ?

 Your task Read Watts, p and list as many examples as you can of successful judicial review cases against the government. Read Watts, p and list as many examples as you can of successful judicial review cases against the government.

Judicial review in action Michael Howard (Cons, Home Sec): several cases including exclusion of Rev Moon from UK due to financial irregularities Michael Howard (Cons, Home Sec): several cases including exclusion of Rev Moon from UK due to financial irregularities Michael Howard Michael Howard David Blunkett (Lab, Home Sec): over Nationality, Immigration & Asylum Act (2002) David Blunkett (Lab, Home Sec): over Nationality, Immigration & Asylum Act (2002) David Blunkett David Blunkett Anti-Terrorism Act (2001): detention without trial unlawful, as were ‘control orders’ Anti-Terrorism Act (2001): detention without trial unlawful, as were ‘control orders’ Anti-Terrorism Act Anti-Terrorism Act Prague Airport (2004) – activities of immigration officers contravened 1951 Refugee Convention Prague Airport (2004) – activities of immigration officers contravened 1951 Refugee Convention Prague Airport (2004) Prague Airport (2004) Belmarsh (2004) – 9 prisoners held without trial Belmarsh (2004) – 9 prisoners held without trial Belmarsh (2004) Belmarsh (2004)

Plenary Plenary Do you think judicial review gives judges too much power or is it an essential part of British democracy? Discuss this point with your partner and write a judgement paragraph. Do you think judicial review gives judges too much power or is it an essential part of British democracy? Discuss this point with your partner and write a judgement paragraph.

 Your task Read p. 178 and note 5 key articles of the HRA. Read p. 178 and note 5 key articles of the HRA. Why did Labour decide to pass a British Human Rights Act in 1998? Why did Labour decide to pass a British Human Rights Act in 1998? Read pp and create a scales chart listing evidence that the HRA has been a force for good or not. Read pp and create a scales chart listing evidence that the HRA has been a force for good or not.

Key articles Right to life Right to life Freedom of though, conscience and religion Freedom of though, conscience and religion Freedom of expression Freedom of expression Freedom from discrimination Freedom from discrimination Right to privacy Right to privacy Can you see any potential problems in enforcing some of these rights?

Reasons for HRA (1998) Need for British Human rights Act Need for British Human rights Act Cost: £30,000 per case on average Cost: £30,000 per case on average Time: 5 years to go to court Time: 5 years to go to court Parliamentary sovereignty: European Court challenging decisions of UK govt. Parliamentary sovereignty: European Court challenging decisions of UK govt. CCTV footage showing the moment when Jamie Bulger was led off by his attackers

HRA - positive Reducing time & cost of cases Reducing time & cost of cases Upholding sovereignty of UK Parliament Upholding sovereignty of UK Parliament Clarity – EU convention enshrined in UK law Clarity – EU convention enshrined in UK law UK judges able to apply human rights law to UK legislation UK judges able to apply human rights law to UK legislation Judges cannot overturn laws – rule they are ‘incompatible’ Judges cannot overturn laws – rule they are ‘incompatible’

HRA - negative Broad brush approach to judgements Broad brush approach to judgements Empowering & politicising judges still further Empowering & politicising judges still further Controversial cases, e.g. rights of criminal protected Controversial cases, e.g. rights of criminal protected Insufficient: calls from Cameron for a British ‘Bill of Rights’ and scrapping of HRA Insufficient: calls from Cameron for a British ‘Bill of Rights’ and scrapping of HRA Growth of ‘compensation culture’ Growth of ‘compensation culture’compensation culturecompensation culture

Effective safeguards of rights European Court of Justice and European Court of Human Rights. + HRA 1998 European Court of Justice and European Court of Human Rights. + HRA 1998 Post 9/11 and 7/7 changes to constitution case studies Post 9/11 and 7/7 changes to constitution case studies How has Anti-Terror legislation conflicted with the Constitution How has Anti-Terror legislation conflicted with the Constitution The Law Lords – Three case studies showing Judicial Activism in action The Law Lords – Three case studies showing Judicial Activism in action Pressure groups – Amnesty International & NSPCC Pressure groups – Amnesty International & NSPCC The media – Leveson Enquiry into Media Ethics The media – Leveson Enquiry into Media Ethics Legitimacy of War in Iraq and Afghanistan – Hutton Enquiry and death of Dr David Kelly Legitimacy of War in Iraq and Afghanistan – Hutton Enquiry and death of Dr David Kelly

Plenary Plenary Is there a case for scrapping the HRA? Is there a case for scrapping the HRA? Are we living in a society of too many rights and no responsibilities? Are we living in a society of too many rights and no responsibilities? Has the HRA given too much power to judges? Has the HRA given too much power to judges?