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The Judiciary and the Executive
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Specification Guidance
y The role of the judiciary
The promotion of the rule of law
y The importance of independence
How separate are judges from parliament and the governmenty The importance of neutrality
Do judges demonstrate any form of bias?
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Judges and civil liberties
y What are civil liberties and human rights?
y The introduction of and importance of the Human Rights Act
(HRA)
y The Judiciary and the EU
y The Judiciary and the European Convention of Human
Rights (ECHR)
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the extent to which judges can check
the power of the executive
How does conflict manifest itself?
1. Judicial Review
2. Public Inquiry3. Voices of concern
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Judicial Review
y We do not have a codified constitution so judges cannot
strike down any statutes passed by Parliament
y Normally even if judges disagree with the law they are
obliged to apply ity The HRA gave judges the power to verify legislation against
the remit of the HRA and if found to conflict then they send
it back to Parliament for fast track review a spell-check
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y Apart from this process under the HRA normal judicial
review consists in checking the actions of government
agencies (usually ministers) to ensure that the actions that
have been taken are based on legal grounds as specified by the
relevant statute
y If they have acted beyond the rules or scope of the original
statute they are said to have acted ultra vires
y
Here judges have become increasingly active and this role hasplaced them in direct conflict with the executive.
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Public Inquiry
Here the judiciary are asked by the government to investigate a
controversial area and provide an objective report.
1. Scott Inquiry Arms to Iraq
2. Phillips Inquiry The BSE crisis3. Macpherson Inquiry Institutional Racism
4. Hutton Inquiry The Death of David Kelly
5. Saville Inquiry Bloody Sunday
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Voices of Concern
Since the abandonment of the Kilmuir Rules in 1987 members
of the Judiciary are allowed to voice their concerns
surrounding contemporary issues. This freedom has allowed
them to openly criticise the government of the day and
petition for action.
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Judicial Voices
y Lord Taylor (LCJ) condemned the governments Criminal
Justice Act 1991 for Unit Fines.
y LordWoolf condemned David Blunkett for prison
overcrowdingy Lord Judge 2009 The government is obsessed with passing
too many laws, framed with too many words creating too
many crimes
y
Judge Richard Bray condemned the governmentsImmigration laws
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Judges and relations with the executive
1. 1979 1990 The Thatcher Years
2. 1990 - 1997 The Major Years
3. 1997 2010 New Labour
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1979 -1990 The Thatcher Years
Controversy not conflict
Case references
y Ponting
y Tisdall
y PeterWright SpycatcherThe government during these years passed a series of laws
which restricted the power of organised labour and the trade
unions. For the main the judiciary complied with this
legislation.
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1990 - 1997 The Major Years
Conflict emerges
Crime levels now become a major area of public opinion.
EU becomes a significant element of UK judicial control.
Michael Howard
y Sentencing Bulger casey Passage of Bill for minimum sentences
y Prisoners rights
We now see a huge rise in judicial activism.
Orchestrated by more frequent use of judicial review by
pressure groups
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1997 2010 New Labour
Conflict established
y Exponential rise in judicial review
y Increased constitutional legitimacy with the HRA, FOI Act
and creation of the Supreme Court.
yMajor battle lines remain with crime but now the conflict
between civil liberties and public safety is the main
battleground.
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Case history
Government defeats by the judiciary
y Compensation for prisoners not allowed drugs in jail 3,500
y Afghan hijackers trial declared unsafe and they were allowed
to stay in the UK
yBelmarsh detainees
y Learco Chindamo allowed to stay in UK after leaving jail for
murder of Headmaster Philip Lawrence
y Judges side with privacy in the cases of Michael Douglas and
Max Mosley
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Conclusions
y Vastly increased judicial activism in politics
y Vastly increased actions against governments since 1990
y Path has been made easier for judges to act
y EU law is of growing importance and the benchmark is theFactortame case
y A rights based culture has become endemic in the UK
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Future Developments
Labour
y Blunkett and Clarke both perplexed at increased judicial
restriction on the executive
y
Green paper emerges The Governance of Britain (Cm 7170)here the government is considering the role of duties
alongside rights
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Conservatives
y Michael Howard launches campaign agianst the HRA and
judicial activism as leader of Conservatives and as he stands
downy David Cameron pledges to repeal the HRA and introduce a
UK based Bill of Rights
y Conflict is set to continue!
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Resources to take you further
y http://www.supremecourt.gov.uk/index.html
Use this for cases and structure
http://www.independent.co.uk/news/uk/home-news/no-
third-runway-ndash-yet-judge-wades-into-heathrow-battle-1928739.html
Use this for recent attacks on the governments plans for a third
runway at Heathrow
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http://news.bbc.co.uk/1/hi/sci/tech/default.stm
Use this for a new case of Judicial review of the badger cull
y http://www.michaelhowardmp.com/speeches/parliamentandthecourts181109.htm
Use this as link to see how government ministers feel that too
much power has gone to the judges
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Questions?