Discover The Facts

Judiciary


This section contains non-partisan factual information about the Judiciary. It has been compiled by the site editor and is updated periodically. It cannot be re-edited by site users. If you believe any of this material is factually incorrect or politically biased please contact the editor.

Key Questions


On what basis should members of the judiciary be selected?

The Judicial Appointments Committee states as follows:

Under the Constitutional Reform Act 2005 the JAC has a responsibility "to develop and implement our own selection processes.  We have very specific duties in the selection of Judges and Tribunal members, both legal and non-legal.  Our key statutory responsibilities are:

  • to select candidates solely on merit;
  • to select only people of good character;
  • to have regard to the need to encourage diversity in the range of persons available for selection for appointments."
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There is clearly a tension between the requirements for appointment on the basis of merit and the requirement to encourage diversity.  The Law Society has said that it remains concerned by the influence of the serving judiciary in the selection process, because of the composition of the JAC (out of the fifteen JAC Commissioners, five must be judicial members and three others are current or former members of the judiciary).  The society also highlighted that the processes the JAC has adopted – in particular seeking references before deciding who should be interviewed for appointments, rather than after the interview – have tended to give disproportionate weight to the views of the judges in the selection process.  The Law Society fears that this will tend to disadvantage those who come from less traditional backgrounds – such as women, candidates from black and minority ethnic backgrounds and especially for Recorders and senior solicitors.

Others fear that the pendulum may swing the other way, with the JAC being unduly concerned to meet the requirement for diversity over the requirement for appointment on merit to the detriment of the profession.

In any event no matter what recommendations the JAC makes, final decisions are still made by the Lord Chancellor, which leads to fears that this elaborate new procedure may bring about no real change to the selection process at all.

Would we get more representative judges if some form of public election process was involved?  Or would this only politicise the judiciary and detract from the need for a sound knowledge of the law and legal process as being the main prerequisite for being a judge?


What is the role of the Lord Chancellor?

The role of the Lord Chancellor has been severely curtailed in recent years.

The Government’s own website says The reforms of the Lord Chancellor's role separate its different responsibilities and make a clear distinction between government, Parliament and the judiciary.   However, the current Lord Chancellor is also the Minister of Justice.  Can the separate roles which were apparently the aim of the CRA 2005 really be achieved if the same person is performing these two different functions? 

The Lord Chancellor still has the final say on judicial appointments, despite the creation of the JAC.  This may well be a very good thing, because it ensures continuity and a single overview of the structure and performance of the court system.  But is it right that the Lord Chancellor’s role should be offered to someone who is overtly political?  Ought there to be introduced a separate requirement for the Lord Chancellor to have practical experience of the legal system and to be expressly non party-political whilst holding the office?

 

Who controls the Supreme Court?

The appointment of Supreme Court judges is susceptible to political interference because of the key role of the Lord Chancellor in their selection.  Is there a danger that if the new Supreme Court attempts to ‘flex its muscles’ and challenge Government legislation a future government might try to re-engineer the composition of the court to its advantage? Politicians upset with judicial decisions often highlight that the judiciary handles its own appointments and does not have to answer to (or necessarily reflect the views of) the public, this sentiment might in theory be mobilised to constrain the judiciary. The President of the Supreme Court, Lord Phillips, has argued that government funding might compromise its independence from the Ministry of Justice, he has also expressed a strong opposition to appointment of justices by elected officials, indicating a personal conern for maintaining independence. 

In 2003, when reforms of the House of Lords were first mooted opponents of the change said, "In the past the Lord Chancellor's role was to uphold constitutional propriety and champion judicial independence. The constitution would be gravely weakened if that safeguard were removed and not replaced."  More

Is it sufficiently clear that this role as ‘champion’ of the constitution will be fulfilled by the Supreme Court?     

 


What you need to know


The judiciary is traditionally thought of as the ‘third branch’ of government, along with the executive and legislature.  The term ‘judiciary’ means the Courts and the Judges who preside over them.  The courts resolve disputes, uphold the law (both civil law and criminal law) and protect people’s liberties.  Parliament is said to make the law, the courts to apply and interpret it.  But this can be an oversimplification.  The courts also make law through common law decision-making, and even the interpretation of statutes involves the weighing and balancing of substantive values.

The judiciary is given ‘judicial independence’ - they are protected in various ways in order that they are not influenced by the Government, Parliament or external interest groups.  This ensures that the judiciary makes decisions impartially and applies the law equally to all without favour.

In recent years, the judiciary has become more active in scrutinising executive and parliamentary action to ensure compliance with the Rule of Law.

 


Why does it matter?


The judiciary is fundamental to our representative democracy.  It provides an essential check on the other branches of government by ensuring their actions are consistent with the rule of law.

A major change to the structure of the judiciary has recently been made by the introduction of the new Supreme Court in 2009. The ways in which this new court of final appeal will impact on our constitution in the long term remains uncertain. Initial signs suggest that the new body will take a more assertive and independent stance as well as placing more empahsis on the rights of the individual. Because of the power of the Supreme Court justices questions regarding the appointment procedure and scrutiny of the judiciary may well come to the forefront of public debate in years to come.


What are the key dates?


1701
Act of Settlement stated that judges maintained office on good behaviour, and could only be removed with the assent of both Houses of Parliament
1707
Act of Union with Scotland; but Scotland retains its own separate legal system
1876
Appellate Jurisdiction Act passed - regulating appeals and appointments to the Appellate Committee of the House of Lords
1950
UK signs and ratifies European Convention on Human Rights
1966
UK allows British citizens to take individual petitions to the European Court on European Human Rights
1985
in the GCHQ case the House of Lords hold that the royal prerogative can be reviewed by the courts
1990
in the Factortame case the House of Lords hold that British courts can overturn domestic legislation on the basis that it is incompatible with EU legislation.
1998
the Human Rights Act
2005
Constitution Reform Act passed - begins shift of jurisdiction of Appellate Committee of House of Lords to the UK Supreme Court, to be completed in 2009; established Judicial Appointments Commission for English and Welsh courts; greatly reduced the judicial role of the Lord Chancellor
2009
Supreme Court opens

What are the key facts?


For much of the 20th century, the judiciary was a relatively invisible aspect of the British constitution.  Courts deferred to Parliament because it was argued that Parliament was sovereign and democratically elected; the courts were not.  Governments - particular Labour governments - tended to be suspicious of the judiciary as conservative and illiberal, not trusting them to comply with a government’s policies and programmes.

However, in recent years, the judiciary has become more willing to scrutinise executive action, particularly in the absence of other checks and balances within the UK constitutional order. It has done this mostly through judicial review - examining Government decisions for legality and process.  The enactment of the Human Rights Act 1998 gave the judiciary another means of doing so, as well as providing a more explicit statement of the rights of British citizens.

However, many are sceptical of the role of the judiciary as guardians of the British constitution.  They point to the judiciary’s unrepresentative membership - mostly white, highly educated, middle-class men - who are often thought to be conservative and with narrow life-experience, and have rather uneven history of defending liberties and constitutional matters.  These factors and the fact that the judiciary can only respond to the cases brought before them give critics cause for concern.  Others worry that the elevation of the judiciary to status of constitutional guardians will bring the judiciary into conflict with the executive and the legislature, and energies would be better focused on remedying the imbalance between Executive and legislature. More

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Liversidge v Anderson [1942] AC 206: at the beginning of World War Two, the Home Secretary was given the power to intern people if he had ‘reasonable cause’ to believe they had ‘hostile associations’.  Using this power, the Home Secretary detained a man named Liversidge.  The key issue was whether the Home Secretary had reasonable cause to believe that Liversidge had hostile associations.  The case is famous for Lord Atkins’ dissent, in which he alone held the test of what was ‘reasonable’ was an objective test - that is, that the judges themselves could also make a determination of what was reasonable.  This interpretation of ‘reasonable’ was necessary because it impacted strongly on the liberty of the individual.  But it is also worth noting that the other four judges, the majority of the House of Lords, held that the test had to be a subjective one.  This was a much more conservative, pro-executive test; it meant that it was entirely a matter for the Home Secretary to decide and this was justified on the basis of national security. http://uniset.ca/other/cs5/1942AC206.html

 

The Legal Systems of the UK

The UK does not have a unified legal system.  Instead, there are three jurisdictions: England and Wales; Northern Ireland; and Scotland. England, Wales and Northern Ireland have a common law legal system.  A common law legal system is one in which the law is developed by the courts through judicial decisions, or ‘case law’.  The judiciary is empowered to determine cases on the basis of statute and precedent.  This is in contrast to a civil law legal system, in which the law is collected and organised in a code.  Scotland’s legal system is a hybrid of common law and civil law. More

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For more on the Scottish legal system, see: http://www.justis.com/support/faq-courts.html#scotland
However, at the apex of the UK’s legal system lies the Supreme Court, which acts as the UK’s highest court of appeal on all matters except Scottish criminal cases. This division is complicated by the existence of the ECHR, for which the Supreme Court is the highest British authority on all matters - hence in Cadder vs HM Advocate and Fraser vs HM Advocate the Supreme Court overruled the Scottish High Court in relation to claims against the Scottish legal system's respect for the ECHR.

One distinction often made within a legal system is between criminal law and civil law.  Criminal law covers acts and failures to act considered serious enough that the state itself will prosecute and punish offenders; civil law deals with acts and failures to act between individuals and groups, and covers such areas as contract, property and tort law.

Constitutional law, or public law, deals with matters touching upon the exercise of public power, and is very broad, covering such matters as elections, to violations of human rights, to relations between state institutions.  The basis of constitutional law is a mixture of statute, case law, convention (or practices), European law, treaties and international law.  Generally speaking, the vast majority of cases coming before the courts do not involve fundamental constitutional questions.

 

The Sources of Law for the UK Legal System

Statutes

These are laws passed by Parliament. Generally speaking, statutes are the highest form of law in the land.  The royal prerogative, common law, or convention must all give way to statute. More

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For example the Theft Act 1968 or the Companies Act 2006

The Common Law

This is the law developed incrementally by the courts through cases.  Common law has largely been overtaken by statute law. However, it is still an importance source of law. More

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For example many aspects of the law of contract, such as consideration, have been established by the common law rather than by statute.

European Law

The UK’s accession to the European Communities Act 1972 meant that in many areas UK law is now subordinate to European law; judges are bound by and required to give effect to European law, and decisions of both the European Court of Justice and the European Court on Human Rights.

International Law

This is law developed by international courts and tribunals, lawyers and governments, and consists of treaties, customs and cases. Although often international law will only apply where the UK explicitly agrees to its application (for instance, by signing and ratifying treaties), international customary law is automatically part of UK law.

 

The Structure and Composition of the Courts

Recent Change

In 2003, the Blair government suddenly announced it would abolish the office of the Lord Chancellor, head of and spokesman for the judiciary. This was followed in 2004 with the Constitutional Reform Bill, which not only attempted to abolish the office but also, amongst other things, to establish a Supreme Court for the UK.  The Constitutional Reform Act 2005 (CRA) which was eventually enacted :

  • Greatly reduced the judicial role of the Lord Chancellor
  • Made the Lord Chief Justice the head of the English and Welsh judiciary
  • Established a Judicial Appointments Commission for England and Wales, responsible for recommending appointments to various judicial offices
  • Established an ombudsman for judicial appointments and conduct
  • Created a new UK Supreme Court, which opened in 2009.

The stated aim of the CRA was to remove some of the anomalies of the British constitution as they related to the judiciary and the separation of powers.  The judicial role of the House of Lords as the final appeal court in the UK has ended.  This role was performed by 12 Law Lords, known as Lords of Appeal in Ordinary.  The former Law Lords, most of whom became the first justices of the 12-member Supreme Court, are disqualified from sitting or voting in the House of Lords.  When they retire from the Supreme Court they can return to the House of Lords as full Members (unless the House of Lords has been reformed away from its current composition in the intervening period) but newly-appointed Justices of the Supreme Court will not be given seats in the House of Lords.

Since the bodies created by the CRA are new and largely untested there is some uncertainty about how they will operate in practice. In the case of the Supreme Court there is the possibility that its more independent approach might lead to clashes with the ECHR. More

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The New Law Journal Observed that in R v Horncastle the SC indicated a willingness to contradict the ECHR

Hierarchy of the courts

There is a hierarchy of courts In England and Wales:  Cases commence in the lower courts, and a party to an action can only apply for appeal of his case to the Court of Appeal if he or she can find a legitimate basis. More

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Parties may not appeal just because they are not happy with the outcome of the case.  They need to show, for example, that there has been an error in law.
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Details about the Scottish legal system can be found here:

http://www.scotcourts.gov.uk/introduction.asp

At the apex of the UK legal system as the second, and final, court of appeal is the UK Supreme Court, which commenced operation in October 2009. More

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Until October 2009 the highest UK court was the Appellate Committee of the House of Lords (informally called ‘the House of Lords’, its members ‘the Law Lords’).  However, it was abolished in October 2009 and replaced by the Supreme Court.
It hears appeals on points of law of public importance, for the whole of the United Kingdom in civil cases, and for England, Wales and Northern Ireland in criminal cases.  Additionally, it will hear cases on devolution matters under the Scotland Act 1998, the Northern Ireland Act 1988 and the Government of Wales Act 2006, and has the power to overrule the decisions of those legislatures should they exceed the bounds set out by Wesminster. More
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It is for this reason that the UK Supreme Court is the focus of most of the discussion in this website, even though in practice British citizens are more likely to come into contact with the judiciary via the Magistrate, County or Crown Courts.

Hierarchy of judges.

There is also a hierarchy of judges.

Superior judges

The superior judges are those who sit in the higher courts such as the Supreme Court, the Court of Appeal and the High Court.

Senior judges

Senior judges are those who not only have a judicial post but also an administrative role.  This category includes the President of the UK Supreme Court, the Lord Chief Justice (who is the head of the English and Welsh judiciary; the Lord President is the Scottish equivalent), the Master of the Rolls (head of the Court of Appeal), and the heads of divisions of the High Court. 

Inferior judges

These are judges who sit in the lower courts, and include Circuit Judges, Recorders and District Judges.

Magistrates 

Magistrates are volunteers who deal with around 95 per cent of all criminal cases in England and Wales in the Magistrates Courts. Dealing with less serious criminal cases and civil matters, three magistrates sit together as a ‘bench’.  They decide and pass judgement with help from a trained legal advisor, on whether someone accused of a crime is guilty. More

Senior and superior judges have an unlimited jurisdiction — that is, their power to hear cases is not determined by statute but by the common law.  The jurisdiction of inferior judges is defined by statute, and it is in this sense, therefore, that they are ‘inferior’.

As a result of the Constitutional Reform Act 2005, the Lord Chief Justice, rather than the Lord Chancellor, is now the head of the English and Welsh judiciary. More

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In Scotland, the head of the judiciary is the Lord President; in Northern Ireland it is the Lord Chief Justice of Northern Ireland.
The Lord Chief Justice is responsible for administration of the English and Welsh judiciary, and representing their views to Parliament and Government—all previously the duties of the Lord Chancellor.

 

Judicial independence

Judicial independence is a fundamental tenet of the British constitution.  The judiciary is kept independent from both the control and influence of the executive and the legislature so that it is able to make impartial decisions.  This ensures that everyone will get a fair hearing, and that no one — not even the government — is above the law.  It also encourages trust in government.

In addition to the explicit duty of Ministers to uphold judicial independence under the Constitutional Reform Act 2005, a number of mechanisms operate so as to preserve the independence of the judiciary.

Judicial Appointments

In 2005 the Constitutional Reform Act established a Judicial Appointments Commission (JAC) for England and Wales, responsible for selecting candidates for almost all judicial offices, except for the UK Supreme Court.  The JAC consists of 15 commissioners, 12 of whom are appointed by the Lord Chancellor through open competition, 3 of whom are chosen by the Judges’ Council.  The chairman is always a layman – that is a non-lawyer; of the other 14 commissioners, 5 must be judicial, 5 must be laymen, and the remainder must be drawn from the legal profession, tribunals and magistracy. More

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Prior to the 2005 Constitution Reform Act, senior judicial appointments were the sole responsibility of the Lord Chancellor and the Lord Chancellor’s Office. In essence, the Lord Chancellor and his office would carry out informal discussions with the senior judiciary and key members of the legal profession, and ‘invite’ key candidates. The Lord Chancellor would then recommend these candidates to the Queen for appointment to judicial office. This appointment process attracted criticism for its non-transparent nature, and the impression that selections might not always be based on impartiality and neutrality.  Appointments were perceived to favour white, male, middle class barristers, meaning that the judiciary was perceived as not being properly reflective of composition of the nation.  Having said that, there was no particular clamour from the public for change in this area, nor any particular suggestion that judges who were appointed were inadequate or failing in their duties.

Generally speaking, the JAC is required to select candidates on the base of merit and good character, but also to have regard to the objective of encouraging diversity within the judiciary.  In practice, ‘merit’ is likely to include long experience of court work, as a barrister or as a solicitor. Part of the JAC’s role is to respond to longstanding concerns about diversity within the English and Welsh judiciary. More

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As at 1st April 2009 fewer than 9% of Lords of Appeal in Ordinary or Lords Justice of Appeal, were women and women accounted for fewer than 15% of High Court or Circuit Judges.    Ethnic minority representation is even poorer with fewer than 4% of High Court judges coming from a minority ethnic background.  Source: http://www.judiciary.gov.uk/keyfacts/statistics/index.htm.

Note that declarations of ethnicity are done on a voluntary basis, so these figures may not reflect the actual number of those from an ethnic minority background.

The JAC has already devised various procedures and guidelines for its selections processes, but ultimately a committee of commissioners makes the final decision on whom to recommend to the Lord Chancellor.  The Lord Chancellor has the power to accept or reject the recommendation, or ask the Commissioners to reconsider the recommendation.  The Lord Chancellor cannot select an alternative candidate.

It is the Lord Chancellor who has the final say on who will be appointed. More

There is also a procedure for complaints a bout the appointment process. More
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Judicial appointments for Scotland and Northern Ireland are made through the Judicial Appointments Board for Scotland and the Northern Ireland Judicial Appointments Commission respectively.  These bodies are constituted in a similar manner to the JAC, with both judicial and lay members, and with a remit to recommend candidates based on merit but having regard to encourage diversity. More

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The Judicial Appointments Board for Scotland:

http://www.judicialappointmentsscotland.org.uk/judicial/CCC_FirstPage.jsp The Northern Ireland Judicial Appointments Commission http://www.nijac.org/

Appointments to the Supreme Court are decided by a different process.  A selection commission is formed by the Lord Chancellor when vacancies arise.  This is composed of the President and Deputy President of the Supreme Court and members of the appointment bodies for England, Wales, Scotland and Northern Ireland.  All new judges appointed to the Supreme Court will not be members of the House of Lords; they will become Justices of the Supreme Court.  The commission makes one recommendation to the Lord Chancellor, who, after further consultation, may notify the Prime Minister and accept the recommendation, reject it, or ask the commission to reconsider. More

Removal of judges

Superior judges can only be removed from office by a strict process More

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There are two means of removing a superior judge: by a resolution of both Houses of Parliament; or by the Lord Chancellor where there is proof of disability by infirmity (but this requires consent from other members of the judiciary). Judges are subject to disciplinary processes, but this must be administered by the Lord Chief Justice with the agreement of the Lord Chancellor
However, inferior judges have less protection as the procedures for their removal are slightly less strict.

Judicial immunity

The judiciary is almost entirely immune in common law and statute law from being sued or prosecuted for acts done in a judicial capacity.   There is a convention, occasionally broken, that the judiciary should not be publicly criticised by the government. This goes both ways: the judiciary is meant to remain neutral, and generally does not comment on politicians or everyday politics.

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This convention was seriously called into question during the recent case regarding the alleged torture of Binyam Mohamed. Mohamed was detained in various locations, including Guantanamo Bay, for 7 years. The High Court ruled that a certain document held by the UK government, which allegedly contained details given by the US of Mohamed's treatment, should be publicised. The government appealed this decision on the basis that it would profoundly damage the intelligence-sharing relationship between the UK and US, and would thus have a huge impact on national security.  Controversially, after he had seen a draft of the Court’s judgment ordering disclosure, Jonathan Sumption QC (representing the foreign secretary) wrote privately to Lord Neuberger asking him to reconsider his draft judgment, which contained fierce criticisms of the Government, and the human rights credentials of MI5.  The judgment was apparently changed in response to this letter, which, although private was subsequently made available to the press by council for Mohamed, after the letter was referred to in open court.  Notwithstanding these private and unprecedented intercessions, the Government lost its appeal.  Jonathan Sumption went so far as to say that the decision of the court was irresponsible and appeared to serve a "wider, and in some respects, political agenda". The document which was the subject of the appeal, which does in fact disclose evidence of mistreatment of Mr Mohamed, has now been published on the Foreign Office website and can be viewed here.

Source:  http://news.bbc.co.uk/1/hi/uk/8507852.stm and  http://news.bbc.co.uk/1/hi/uk/8411143.stm and http://www.guardian.co.uk/world/2010/feb/10/binyam-mohamed-torture-mi5

Separation of the powers of the judiciary and the state

The separation of the powers of the legislature, the executive and the judiciary is said to ‘run like a thread through the British constitution.’ More

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Hilaire Barnett Constitutional and administrative law
The extent to which those powers have been truly separate in the past has been the subject of some debate.  One of the guiding principles behind the introduction of the reforms contained in the Constitutional Reform Act 2005 was to make clearer that separation; by formally separating the final court of appeal from the legislature, by taking the Supreme Court out of the House of Lords, and by amending the role of the Lord Chancellor, who has in the past been a member of all three branches of government, being a Government Minister who sat in the House of Lords, but also head of the judiciary.  However, the Lord Chancellor remains the person with the ultimate control over who may be appointed to the judiciary, even if he is no longer the head of the judiciary and he owes his own appointment to the Prime Minister, under the exercise of prerogative powers.  At present the Lord Chancellor is also the Minister of Justice, so there may yet be an extent to which the separation of powers may be said to be blurred.

Throughout much of the twentieth century, judges have often been appointed to head or chair commissions and inquiries, which may also have the effect of blurring the line between executive and judiciary. More

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For example, The Right Honourable Lord Justice Gage chaired the 2008 enquiry into the death of Baha Mousa and Lord Mark Saville was chairman of the 1998 Bloody Sunday Inquiry.

In practice, the judges who collectively form the judiciary remain separate from the Government and parliament, and are free to deliver judgments free from political interference and few suggest otherwise. Nevertheless, the impact of the creation of the new Supreme Court remains untested.  Several senior figures, Lord Neuberger and Lord Collins included, have suggested that Supreme Court judges may feel freer to challenge Parliament, leading towards a system more similar to that which exists in the United States of America.

 

Function and Roles

The key function of the judiciary is to resolve disputes and carry out the administration of justice. However, the judiciary also has a special constitutional role, which is to ensure state compliance with the rule of law and to protect the liberties of the people. More

Judicial review

The courts are able to supervise government and administrative action by judicial review.  If a government decision or action is illegal, procedurally improper, disproportional or irrational, the courts can overturn the decision or require the decision-maker to revisit the issue.  Judicial review is concerned more with the legality and process of a decision, rather than its substance.  At its barest, judicial review is based on the principle that no body may act outside the powers granted to it More

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This is known as the principle of ultra vires.

Judicial review, or administrative law, emerged in the 1960s, and accelerated in the 1980s as a major means of scrutinising executive action.  The judiciary came to be seen as a key safeguard of legality and liberty in a constitution that favoured strong government and was weak in checks and balances.  Judicial review, however, does not threaten Parliament’s sovereignty: in general it does not evaluate the substance of the law in question, but only how the law is applied. More

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Council of Civil Service Unions and others v Minister for the Civil Service [1984] 3 All ER 935: in 1984, Prime Minister Margaret Thatcher issued an order that all staff at the Government Communication Headquarters (GCHQ) would no longer be permitted to belong to unapproved trade unions.  The Council of Civil Service Unions took the government to court, saying there was a legitimate expectation that those affected would be consulted before a decision was made.  The Minister had acted unfairly — there had been no consultation at all. The Government argued that the courts had no role in the matter, as this order was made under the royal prerogative.  The House of Lords held that contrary to what the government asserted, the use of the royal prerogative was subject to judicial review. However, because this was a matter of national security the courts would not look into the matter. 

R (Al Hasan) v Secretary of State for the Home Department [2005] UKHL 13: a number of prisoners at HMP Frankland had been ordered to squat or bend over as part of a strip search for dangerous materials.  The squat search had been ordered by the Governor of the Prison.  Two prisoners refused to squat and were subject to a disciplinary hearing chaired by the Deputy Governor. They argued the search had not been lawful; the Deputy Governor rejected their argument.  They brought a claim of judicial review over the Deputy Governor’s decision, arguing that it would be biased.  The House of Lords agreed: the Deputy Governor had been present when the order was originally approved by the Governor and so lacked independence; an outside observer would think the Deputy Governor predisposed to find the order lawful.

http://www.publications.parliament.uk/pa/ld200405/ldjudgmt/jd050216/carrol.pdf

The Human Rights Act 1998

The Human Rights Act 1998 incorporates the 1950 European Convention on Human Rights (ECHR) into UK law.  The ECHR was drafted by the Council of Europe in the wake of the Second World War, with the UK as a key participant and instigator of the Convention. More

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The Council of Europe is separate from the European Union: it is an intergovernmental body charged with encouraging European integration, promote democratic stability, human rights and the rule of law.  The decision-making body of the Council of Europe is the Committee of Ministers, comprising the Foreign Ministers of all the Council of Europe member states.  Accordingly, the Council is not itself strictly democratically elected.

The ECHR established a Commission of Human Rights and a European Court of Human Rights to enforce Convention rights.  Citizens of countries signing up to the ECHR could make an individual petition to the Court in Strasbourg, France, after exhausting their own countries’ appeal process, and getting permission from the Commission.

The UK signed and ratified the ECHR in 1951, but it was not until 1966 that British citizens could take an individual petition claiming violations of Convention rights to the Strasbourg Court. More

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Note that the European Court of Human Rights is separate from the European Court of Justice
However, this was an extremely lengthy and costly process; and it seemed odd that British citizens had to go to Strasbourg for vindication of their rights.  By 1997, the European Court of Human Rights had held that the UK had violated human rights in 50 of 98 cases referred to it. Many of these cases related to conditions in Northern Ireland.

The passing of the HRA in 1998 allowed British citizens to go to British courts to make claims of violation of their Convention rights.  These rights include the freedom of expression, freedom from torture, the right to freely associate, the right to a fair trial, and a right to respect for private and family life. More

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  The HRA incorporates the ECHR in a schedule. Convention rights include:

  • the right to life
  • freedom from torture and degrading treatment
  • freedom from  slavery and forced labour
  • the right to liberty
  • the right to a fair trial
  • the right not to be punished for something which wasn't a crime when it was done
  • the right to respect for private and family life
  • freedom of thought, conscience and religion, and freedom to express your beliefs
  • freedom of expression
  • freedom of assembly and association
  • the right to marry and to start a family
  • the right not to be discriminated against in respect of these rights and freedoms
  • the right to peaceful enjoyment of your property
  • the right to an education
  • the right to participate in free elections
  • the right not to be subjected to the death penalty

 

The full text of the HRA 1998 can be found here:

http://www.opsi.gov.uk/ACTS/acts1998/ukpga_19980042_en_1

 

The Ministry of Justice has published a guide to the HRA:

http://www.justice.gov.uk/guidance/docs/act-studyguide.pdf

Some rights are absolute, such as the freedom from torture.  Other rights are limited - such as the right to liberty, which may be limited in circumstances specifically set out in the Convention itself (for instance, a lawful arrest or detention).  Finally, some rights are qualified - such as the freedoms of expression, association, and right to religious belief.  These can be qualified by legislation if done to secure an aim set out in the article, and is ‘necessary’ in a democratic society - necessary meaning the qualification must secure a legitimate aim and be proportionate to the aim being pursued.

 

All ‘public authorities’ are required to comply with the HRA.  There are three key means of ensuring this:

  • The Minister introducing proposed legislation must make a written statement about the bill’s compatibility with the HRA.
  • The courts must, as far as possible, interpret the legislation in question to ensure compatibility with Convention rights.
  • Where legislation cannot be so interpreted, the courts are empowered to make a ‘declaration of incompatibility’. However, the legislation in question remains, and will not be affected by such a declaration.

 

Thus, unlike the courts in the US, courts in the UK do not have the power to strike down primary legislation and make them invalid on the basis that they are ‘unconstitutional’.  In this way, parliamentary sovereignty is preserved: only Parliament can change the law. However, it is worth noting the courts can invalidate secondary legislation, and any law passed by the devolved legislatures of Scotland, Wales or Northern Ireland, if it should be incompatible with Convention rights. More

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It is in this field that there is ongoing uncertainty as to whether the Supreme Court may feel free to flex its muscles and challenge Parliamentary sovereignty.

From 2000 till January 2009, there have been 17 declarations of incompatibility.  Of these, 14 have been remedied; remedies for the remaining three are still being discussed.  In short, governments have taken notes of the courts’ actions, and acted to resolve inconsistencies. More

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source: Vernon Bogdanor The New British Constitution (Hart Publishing, Oxford, 2009)
But the impact of the HRA cannot be measured simply by the number of declarations of inconsistency.  The courts have also interpreted legislation so that as much as possible it will accord with the rights contained within the HRA.

One effect of the HRA is that it encourages the judiciary to make explicit judgements about the substance of legislation; this is not to say judges did not do so before, but they tended to mask their views in obtuse language.  In this way, some think of the HRA as a break with the traditional idea of the judiciary as ‘neutral’, and reinforce the idea that they are ‘political’. More

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Thompson and Venables v News Group Newspapers Ltd, Associated Newspapers Ltd and MGM Ltd [2001] 1 All ER 908 (Queen’s Bench Division).

Thompson and Venables as young 10-year-old boys had killed another young boy, James Bulger, in 1993.  They were sentenced and detained, and granted injunctions restricting publication of further information about the two boys. On turning 18, Thompson and Venables applied to the court for injunctions preventing publication of any identifying information.

Newspaper organizations argued that they had a right to publish information under article 10 of the ECHR—the freedom of expression.  The court, however, granted a continuing injunction.  There was a real concern that if the young men’s identities were made public that there would be potential violations of the men’s right to life (article 2), right against inhuman and degrading treatment (article 3), as well as the right to a private and family life (article 8).

A v Secretary of State for the Home Department: also known as ‘the Belmarsh Prisoners case’.  In this case, the House of Lords held by an eight to one majority that the section of the Anti-Terrorism, Crime and Security Act 2001 (ATCSA) dealing with indefinite detention was incompatible with the HRA.

The ATCSA had been rushed through Parliament soon after September 11, 2001, with a majority of both Houses accepting the proposed bill.  Under the ATSCA, the UK opted out of the right against indefinite detention (allowed under the HRA/European Convention) on the basis that there was a national emergency.  It empowered the Secretary of State for the Home Office to detain indefinitely foreign nationals suspected to be international terrorists.

A majority of the House of Lords held that while there was a national emergency, the ATCSA was disproportionate to the aim pursued and discriminated against the appellants on the basis of race.

The response of the government was to replace the 2001 Act with a new one, the Prevention of Terrorism Act 2005.  This legislation was passed with great difficulty in Parliament, but in essence established a regime of control orders for those accused of terrorism.  This legislation has also been subject to judicial scrutiny.

 

A v Secretary of State for the Home Department [2004] UKHL 56

http://www.publications.parliament.uk/pa/ld200405/ldjudgmt/jd041216/a&others.pdf

European law

The extent to which British membership of the European Union impacts on English law remains the subject of some considerable debate.  English judges have found in a number of cases that where English law is incompatible with European law, then the European law or directive will take precedence.  More

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Factortame v. Sec. of State for Transport (No.1) [1989] 2 W.L.R. 997 (HL); 1990 The Times 20 June (E.C.J.); (No.2) [1990] 3 W.L.R. 818 (H.L.); [1991] 3 All E.R. 769.

After the recognition in this case that UK law had breached European law and that the latter must prevail, English law was formally changed by staute.  Some changes in the fishing regulations had already been made by the merchant Shipping Act (Amendment) Order 1989 SI No.2006. Others followed in the Merchant Shipping (Registration ) Act 1993.  Later still, it was accepted that damages (amounting to many millions of pounds) would have to be paid top the Spanish trawler owners: R v Secretary State for Transport, ex p. Factortame (no 5) (1998) The Times 28 April.

With the creation of a new Supreme Court, whose express purpose is to separate still further the functions of legislature and judiciary, it remains to be seen whether the new court will feel at liberty to strike down a wider range of UK legislation and to give greater precedence to decisions of the European governing bodies than to the British parliament.

The Supreme Court's record in its first two years offers evidence for and against this scenario: on the one hand, it ruled that the government contravened the ECHR by not allowing rehabilitated sex offenders to file to be removed from the national register, on the other side, in R. vs Horncastle and others in 2009 it ruled that Strasbourg had misinterpreted the ECHR in refusing an appeal against a conviction. The Supreme Court's willignness to oppose the government on the grounds of European law should accordingly be balanced with an awareness that the court appears to include in its remit the ability to contradict European courts in theri interpretation of European law.

 


What do others think?


Joint Committee on Human Rights A Bill of Rights for the UK? (HL 165, HC 150, 2008)

http://www.publications.parliament.uk/pa/jt200708/jtselect/jtrights/165/165i.pdf

 

The Governance of Britain: Judicial Appointments

http://www.justice.gov.uk/consultations/docs/cp2507.pdf

 

Liberty (National Council for Civil Liberties)

http://www.liberty-human-rights.org.uk/

 

Justice (an independent legal human rights organisation)

http://www.justice.org.uk/enterb/index1.html

 

The Convention on Modern Liberty

http://www.modernliberty.net/

 

Prospect Magazine on the Supreme Court

http://www.prospectmagazine.co.uk/2011/05/a-law-unto-itself-supreme-court-judges/

 

The Law Society

http://www.lawsociety.org.uk/home.law

 

The UK Supreme Court's Blog

http://ukscblog.com/

 

The Governance of Britain: Judicial Appointments

http://www.justice.gov.uk/consultations/docs/cp2507.pdf

 

Comments by the Law Society of England and Wales January 2008

 

 


References and Links


Research papers


Useful websites


Further reading

Research papers

Background to Proposals for a British Bill of Rights and Duties, House of Commons Library, 2009

Judicial Appointments, House of Commons Library, 2009

A Guide to the Human Rights Act 1998, Ministry of Justice, 2006

Relations between the Executive, the Judiciary and Parliament, House of Lords Select Committee on the Constitution, 2007

Useful websites

The UK Supreme Court

Ministry of Justice

Judiciary of England and Wales

Scottish Courts

Judicial Appointments Commission

Judicial Appointments Board for Scotland

Judicial and Court Statistics

Further Reading

- Robert Stevens The Independence of the Judiciary: A View from the Lord Chancellor’s Office (Clarendon Press, Oxford, 1993)

- JAG Griffith The Politics of the Judiciary (fifth edition, Fontana Press, 1997

- Francesca Klug Values for a Godless Age: The History of the Human Rights Act and Its Political and Legal Consequences (Penguin Books, London, 2000)

- David Feldman “Civil Liberties” in Vernon Bogdanor (ed) The British Constitution in the Twentieth Century (Oxford University Press, Oxford, 2003)

- Anthony King The British Constitution (Oxford University Press, Oxford, 2007)

- Rodney Brazier Constitutional Reform: Reshaping the British Political System (third edition, Oxford University Press, Oxford, 2007)

- Vernon Bogdanor The New British Constitution (Hart Publishing, Oxford, 2009)



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