Lecture 9

Politics and the Judiciary

Dr Tom Quinn

GV204 – The New British Politics

2 December 2008

Outline

• Aim of lecture: To assess whether the judiciary has been increasing its power in the British political system

• Traditional view of the courts’ role

• Rise of judicial activism

• European Union law

• ECHR and Human Rights Act

• Balance between liberty and security

The Courts and the UK Political System

• Rule of Law• All power subject to rules

• No officials above the law

• 2 sources of UK law• Statute & Common Law

• Traditionally courts not involved in politics

• No constitutional court

• Administrative judicial review (cf. USA)

• No Bill of Rights for UK courts to enforce

• Courts constrained by parliamentary sovereignty

• ‘The principle of parliamentary sovereignty means nothing more nor less than this, namely, that Parliament … has, under the English constitution, the right to make or unmake any law whatever; and, further, that no person or body is recognised by the law as having a right to override or set aside the legislation of Parliament.’ (Dicey)

1. Creating common law• Legal precedents accumulated over time• Necessary because statute law often vague/incomplete

2. Interpreting criminal law• Set down in statutes

– Concerns public/moral wrong-doing– Offenders punished by the state

3. Interpreting civil law• Concerns relationship between individuals/organisations

– E.g. contracts

4. Interpreting public law• Concerns relationship between state & individuals, and

between different parts of the state

Role of the UK Judiciary

Judicial Institutions in England & Wales

Magistrates’ Courts

Crown Court

County Courts

Queen’s Bench

Division

Family Division

Chancery Division

THE HIGH COURT

Criminal Division

Civil Division

COURT OF APPEAL

HOUSE OF LORDS*(12 Law Lords)

Main forms of appealSome forms of appeal

* Note: From Oct 2009, the House of Lords’ judicial functions transfer to the new Supreme Court of the United Kingdom

EC/EU Law and UK Law (1)

• EU law covers EU’s policy competencies• EC law initially covered member states’ relations with

each other & EC institutions

• 1963 – EC citizens’ rights enforceable in national courts• Principle of ‘direct effect’

• What if citizens’ rights under EC/EU law conflict with national laws?

• ECJ – European law is always superior!

• Every national court can enforce EC/EU law• ECJ does not ‘strike down’ national laws

• Delivers ‘preliminary rulings’ to national courts on request – clarify EC/EU law & guide national courts’ decisions

EC/EU Law and UK Law (2)

• UK courts – interpret UK law in line with EC/EU law as much as possible

• Factortame Case:• ECJ: National courts must ‘set aside’ laws violating EC law

• Subsequent House of Lords ruling:

• EU law superior to UK law

• Downgrading of ‘implied repeal’ (doctrine that if 2 Acts of Parliament in conflict, most recent one takes precedence)

• Why? Lords held that European Communities Act 1972 trumps later UK legislation

• Thus, it seems Parliament can bind its successors (with European Communities Act 1972) – undermines Dicey

Rise of ‘Judicial Activism’ in Britain

• Judicial activism – courts active in policy-making?• EU integration – empowered national courts

• Agents of the ECJ• European integration shifted power within member states from

executives and legislatures to courts

• More judicial activism in non-EU areas too• Check on powerful executive in 80s/90s• Huge rise in applications for judicial review:

– 500 in 1980– 1,000 in 1985– 1,500 in 1987– 2,000 in 1990– 4,200 in 2004

– Especially pronounced in cases of individual rights

Judicial Review in the UK

1. Illegality– Doctrine of ultra vires (‘beyond powers’)– Did ministers/public bodies exceed powers set out in enabling

statutes?

2. Procedural impropriety– Have procedures been followed correctly?

• Unbiased & fair hearing

3. Irrationality– Is a decision ‘unreasonable’?– Rarely used as ground for appeal

4. Proportionality– Was a decision disproportionate? End achievable with less

draconian means?– Responsible for major growth in judicial review

Individual Rights & the UK Constitution

• Majoritarian democracy: executive > courts

• What has protected British people from executive tyranny?

• Party competition

• Public opinion

• But long periods of single party rule…

• … and public opinion often illiberal

The European Convention on Human Rights (ECHR)

• 1948 – UN Universal Declaration of Human Rights

• 1949 – Council of Europe drafted ECHR

• IMPORTANT: Council of Europe NOT part of EU

• Cases to be brought before European Court of Human Rights (ECtHR) in Strasbourg

• UK ratified in 1950• Not incorporated into UK law (unlike elsewhere)

• Individual UK citizens could petition court only from 1966

Convention Rights

• Right to life

• Prohibition of torture

• Prohibition of slavery & forced labour

• Right to liberty & security

• Right to a fair trial

• No punishment without law

• Right to respect for private & family life

• Freedom of thought, conscience & religion

• Freedom of assembly & association

• Right to marry

• Prohibition of discrimination

UK and the ECHR

• UK – poor record – 50 defeats to 1997...

• … but good record of changing legislation after Court defeats

• Road to Strasbourg – expensive, time-consuming

• UK – negative liberty• But new executive dominance

• Left – traditionally opposed to judiciary but changed in 1990s

Some UK Defeats– Illegal phone taps

– Immigration rules

– Rights of prisoners

– Homosexuals in armed forces

– Union closed shop

– Corporal punishment

– Anti-terrorism

Human Rights Act 1998 (1)

• HRA incorporates ECHR into UK law• ‘Bringing rights home’

• Gives individuals rights enforceable in UK courts• ‘Constitutional’ legislation

• But no special provisions for change

• All legislation requires minister to confirm compatibility with ECHR rights

• Public bodies – actions and regulations must comply with ECHR

Human Rights Act 1998 (2)

• Courts must interpret laws in line with ECHR

• If not possible, higher courts can issue ‘declaration of incompatibility’

• Up to parliament to change law – possibility of fast-track changes

• Courts cannot strike down primary legislation

• Thus, parliamentary sovereignty retained...

Criticisms & Observations

• Unnecessary & divisive – discredits human rights• HRA will produce ‘a field day for crackpots, a pain in the neck

for judges and legislators, and a goldmine for lawyers’ (Lord McCluskey)

• ‘Positive’ liberty incompatible with parliamentary sovereignty?

• Rights already existed – but people had to go to Strasbourg

• Unelected judges – bigger role in policy-making

• British constitution was flexible but HRA involves constitutional entrenchment

UK Courts & Anti-terrorism Legislation

• Post-9/11 – debate over balance between civil liberties and security

• Threat of terrorism, but also asylum-seekers• Major conflict between Labour Govt & courts

• Anti-terrorism, Crime & Security Act 2001• Detain foreigners suspected of links to terrorism

– Too dangerous to be free, but unable to deport– 9 detainees appealed – Law Lords ruled the powers

violated HRA & issued declaration of incompatibility– New policy of ‘control orders’ instituted…– … but weaknesses apparent

Conclusion

• What is the role of the courts in a liberal democracy?

• Has the Human Rights Act prevented the elected Govt from protecting citizens?

• Is the major threat to civil liberties from the state or from terrorists?

• To what extent can judicial activism be justified in the British political system?