mypoliticsnotes

 The Judiciary

                                                                                                Quis custodiet ipos custodes (who watches the watchmen?)

The rule of law is the principle that all people and institutions are subject and accountable to the law. A.V. Dickey says it is one of the twin pillars of the constitution. 

What is their role? They resolve disputes, interpret the law and create expectations for the future. Their 3 key functions include being the final court of England,Wales and Northern Ireland. They hear appeals from civil cases for example Macdonald V Advocate General for Scotland which was a challenge to the legality of Scottish Parliament decision to pass a bill without consultation. And finally hearing appeals where the law is needing to be clarifies for example the VAT decision in 1991 involving the Jaffa cake. 

Before 2005 becoming a judge was done by the PM and Lord Chancellor, who at the time was the leader of the House of Lords, member of cabinet and head of the Judiciary. They used a process called 'secret soundings'. The Supreme Court was made of the House of Lords also known as 'The Law Lords'. Since the 2005 Constitutional Reform Act an Ad hoc 5 member selection is formed to chose the replacement the members including the current president and deputy president of the Supreme Court, one member of the Judicial Appointees Committee and one from each of the equivalent organisations in Scotland and Northern Ireland. The nominee is then submitted to the Lord Chancellor who will 'recommend' them to the PM who will appoint them, these last two steps are largely ceremonial. 

Judges in the UK are never politicians but recruited from the legal profession, meaning decisions can be a - political. However there is still an ongoing issue of their representation. Judicial review in the UK is slightly different to the US whereby because Parliament is sovereign law cannot be struck down by the SC. Instead it means reviewing the actions of public officials to determine if they have acted lawfully. 

Judicial independence and neutrality - Judicial independence allows judges to do the right thing without being suspected of doing it based on political whim.  These are 3 things that maintain their independence, first being security of tenure where judges are appointed without term limits and cannot be suspended by the Government. Secondly they have guaranteed salaries and finally contempt of court, where judges can find the media and ministers guilty of interfering with legal proceedings. This occurred when Tommy Robinson was sentenced to 6 months for filming outside the crown court during trial. Judicial neutrality is maintained via the judges being relatively anonymous, having restricted political activity and using legal justification. 

Key examples : Factortame : A Spanish fishing company who challenged our Government over a law which banned Spanish fishing fleets from using British waters. This law however contradicted the EU law that allowed European ships to fish in any European waters. The European Court of Justice ruled that the UK should suspend our law, this was the first time UK courts could nullify law.        In this example the courts clarified the meaning of the law. In 1991 there was debate on whether the Jaffa cake was a cake or a biscuit as a cake would not be subject to VAT, a biscuit would. It was ruled a cake. This is an example of how seemingly trivial distinctions can have significant impacts.                                                                                                                                                                                                                 Bellinger V Bellinger is a case regarding the legal recognition of gender change via surgery. The House of Lords declared the existing law on transgender recognition incompatible with the 'right to respect for family and private life' this led to changes in gender recognition.                                                                                                                                                                                                                                         2013 Parliamentary Privilege case : The SC ruled that any information given in Parliament could be used in legal proceedings, which challenged the traditional notion of Parliamentary privilege. 

Tigere V. Secretary of State for Business, Innovation and Skills 2015. This was a legal case concerning access to student loans highlighting the issue of discrimination and the right to education under the European Convention of Human Rights. She was unable to access student loans due to her immigration status, and the current regulations at the time. She argued it violated her right education under article article 2 of the European Convention of Human Rights and to be free from discrimination under article 14. The Supreme Court ruled in her favour finding that the blanket exclusion of her and others like her, was discriminatory this made parliament revise student loan eligibility to ensure no discrimination.

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