One of the main functions of the UK judiciary is the implementation of justice. Justice must be administered justly i.e. fairly, without fear or favour. Justice is often represented as a female figure. (see image left) In one hand she holds the sword of justice, in the other a set of scales to weigh up innocence or guilt. However, most importantly she is always shown blind folded. Why do you think this is the case?
THE JUDICIARY AND CIVIL RIGHTS
Judges are there to uphold the rule of law. This of course has implications for civil liberties and human rights because the law grants British citizens certain liberties and rights and many argue that the judiciary should protect the civil rights of British citizens by ensuring that those rights are not abused or ignored by, for example the government. This is why this unit looks at the judiciary and the issue of civil liberties. Many of the questions in your examination will focus on this role of the judiciary and how successful they are at playing it.
Very briefly, what are rights?
Human rights=
Civil rights=
Positive rights=
Negative rights=
In order to ensure that justice can act without fear and favour and be impartial there are two important concepts that should be upheld in a liberal democracy. They are
· JUDICIAL INDEPENDENCE
· JUDICIAL NEUTRALITY
We will look at both these concepts in more detail. They are not the same and you need to be clear what they are.
JUDICIAL INDEPENDENCE
SOURCE A Independence of the judiciary (also judicial independence) is the principle that the judiciary should be political insulated from the legislative and the executive power; that is, courts should not be subject to improper influence from the other branches of government, or from private or partisan interests.
Independence of the judiciary is associated with the rights of individuals (and specifically the rights of the accused), because it protects individuals from state power wikipedia.
SOURCE B Judicial independence "is basic to the (British) Constitution." (G M Lewis) and is therefore an important part of the structure of British Politics.
Democratic rights within British society depend on decisions taken within courts. These courts have to remain independent of outside pressure and interference i.e. from the government. Judges at all levels have to be confident that they will not face consequences if they take the government to task over government decisions. www.historylearningsite.co.uk
1. Study the two sources above and your Edexcel book page 283. What are the key principles of judicial independence?
2. Why is judicial independence seen as important in securing civil liberties for UK citizens?
Study your Edexcel text book pp 283-284 and make notes on the FOUR main ways that are used to secure judicial independence in the UK.
1. ______
2. ______
3. ______
4. ______
There have been numerous criticisms about whether the judiciary is independent enough particularly from interference or undue influence from the executive. The old system where the head of the judiciary, the Lord Chancellor was appointed by the Prime Minister and he in turn appointed senior judges led to concerns about too much political control over the judiciary. You have studied the reforms of the judiciary contained within the 2005 Constitutional Reform Act.
How have they tried to increase the independence of the judiciary especially from accusations of too much interference from the executive?
Members of the executive often come into conflict with the judiciary, especially over high profile cases such as the sentencing of two boys who were convicted over the murder of toddler Jamie Bulger in 1993. Michael Howard was Home Secretary at that point and he was seen to be interfering in the judicial process. This is often in response to public outrage over sentences they consider too light.
SOURCE C
Howard `ignored common sense' in Bulger case
Coupons in the Sun newspaper rather than expert social inquiry reports led to the Home Secretary's "unlawful" decision to fix 15-year minimum sentences on the two schoolboy killers of the Liverpool toddler Jamie Bulger, the High Court was told yesterday.
Michael Howard's decision to make examples of the two 10 year-old boys - punishing them "in a blaze of publicity" as if they were adults - "flew in the face of common sense and the penal code of every civilised society", said Edward Fitzgerald QC.
Mr Howard should have put the cut-out coupons from the Sun, in which readers urged whole life sentences to be imposed, in the bin, said Mr Fitzgerald.
Instead, he should have called for social inquiry, psychiatric and other relevant reports. Not only did he ignore a requirement of both domestic and international law to consider the boys' backgrounds, he also ignored all mitigation on their behalf, said Mr Fitzgerald.
"No other country would have a situation such as this where a child as young as 10 can have a punitive sentence imposed by a politician," he said. The boys should be entitled to a regular review of their detention, he argued.
After recent clashes between Mr Howard and top judges over crime and punishment, the QC argued that sentencing was a matter for the judiciary - not the executive. Heather Mills The Independent 18th April 1996
Even more recently members of the executive and judiciary can clash.
SOURCE D
Belmarsh suspects to be freed after Clarke gives in to pressure
Eleven foreign terror suspects held without trial for three years under controversial emergency legislation are to be released without charge in a government climbdown to be announced today.
The men's release is part of ministers' response to a historic House of Lords ruling last month that found the Government in breach of fundamental human rights laws. That judgment sparked a constitutional crisis, leading to calls for a rethink on Britain's response to the September 11 attacks.
In a majority eight-to-one decision last year, the law Lords ruled that the treatment of the foreign terror suspects was discriminatory because the laws applied only to non-Britons.
Delivering the law lords' ruling, Lord Hoffmann went so far as to suggest that the Anti-Terrorism Crime and Security Act 2001 itself was a bigger threat to the nation than terrorism. But Mr Clarke, in a statement to MPs, said at the time: "My primary role as Home Secretary is to protect national security and to ensure the safety and security of this country. I will not be revoking the certificates or releasing the detainees, whom I have reason to believe are a significant threat to our security." The Independent 26 Jan 2005
JUDICIAL NEUTRALITY
SOURCE E Judicial neutrality is the backbone of the British Judicial system. What exactly is judicial neutrality? Though the judiciary is not entirely independent of Parliament and the government, it is still expected to be neutral when making legal decisions/rulings. Even if judges do have a political preference, their final rulings are meant to be free of such influences.
“The judges are the keepers of the law and the qualities they need for that task are not those of the creative law-maker. Enthusiasm is not and cannot be a judicial virtue. It means taking sides and if a judge takes sides, he loses the appearance of impartiality and quite possibly impartiality itself.” Lord Devlin, former Law Lord.
Study Source E and your Edexcel book pages 284-285.
1. What is judicial neutrality and how is different from judicial independence?
2. According to Professor John Griffiths what is the main obstacle preventing the judiciary from being judicially neutral?
3. What examples are given in your text book to illustrate where it can be argued that the judiciary has not been neutral. This is in keeping with Marxist theory which argues that the law and the judiciary in a capitalist system are part of the ruling class designed to uphold the rights and privileges of the ruling classes.
SOURCE F
Our judiciary needs to be more representative of the society it seeks to serve
If judges were to visit schools in order to explain the role of the courts in society, however, they might be asked some awkward questions. It should not take the average sixth-former more than five minutes to expose some of the more fundamental weaknesses of our judicial system. The most glaring is, still, that judges are unrepresentative of the society in which they play their valuable role. True, most of the museum-pieces have been cleared out: the judges who found women guilty of contributory negligence in rape cases if they wore clothes deemed provocative, or who used their court as a platform for their reactionary views on race, hanging and the incorruptibility of men in uniform. Most of our judges are of high intellectual quality, with a good balance between liberals and conservatives. Lord Woolf himself is a fine liberal judge: last month in the Appeal Court he overturned "automatic" life sentences for two men who had committed a second serious violent offence on the grounds that they were no longer a risk to the public. Meanwhile, as we report today, every judge who has heard a case which theoretically requires a jail sentence for a third burglary conviction, under Jack Straw's populist "three strikes and you're out" policy, has declared an exception and imposed their own sentence.
Nevertheless, and although the legal profession is changing, the dearth of women and the absence of people from ethnic minorities from the ranks of senior judges is a national embarrassment. As the Prime Minister's wife can testify, women and to a lesser extent ethnic minorities have made the breakthrough into the junior levels of barristers and solicitors. But their progress up the ladder has been painfully slow. A more rigorous, open selection procedure at each level might not accelerate the process, but at least the charges of cronyism and old-boy-networking would lose their force. The system of secret soundings under the supervision of a politician (Lord Irvine, the Lord Chancellor), which decides promotion to the rank of Queen's Counsel and then to the judges' benches, should have no place in a modern democracy.
At the pinnacle of our legal system, the 12 Law Lords, our equivalent of the US Supreme Court, are all men, all white and mostly privately-educated. This is a state of affairs in urgent need of reform. The Independent. 27 December 2000. (note this was written before the contitutional changes to the judiciary)
1. What are the main criticisms levelled at the judiciary in this article which the ‘average sixth former’ would spot about the judiciary in five minutes?
The 2005 Constitutional Reform Act was designed to end the ‘tap on the shoulder’ by the Lord Chancellor, old boy network system of appointing judges by setting up an independent Judicial Appointments Commission. In 2007 a provision of the Tribunals, Courts and Enforcement Act reduced the amount of experience a candidate had to have had before being considered for a judicial post. This was hoped would encourage more people to apply and increase the diversity of judges. It may take time before it can be judged (excuse the pun) whether these measures have been effective in making the judiciary more representative of the British public. At the moment all the Lord Justices are white, eleven out of twelve are male and all save one went to Oxford or Cambridge universities.