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from http://www.ukpoliticsbrief.co.uk/con...n_of_the_j.htm
The Constitutional position of the Judiciary in the UK
Judges interpret and uphold the law, as laid down in statutes by parliament. They are also at present involved in framing laws as the most senior Judges, the Law Lords, sit in the second chamber, the House of Lords, and can seek to influence Bills as they pass through parliament. Michael Howard's Bill to reform sentencing rules was heavily criticised by the Lord Chief Justice, Lord Taylor, as it went through the Lords. In addition, judges contribute to the system of common law when they make decisions in the courts in specific cases ( interpreting statutes ). Decisions made in higher courts are binding on lower courts, and set a precedent for future cases, that judges can draw on.
At the head of the judiciary is the Lord Chancellor, who is appointed by the PM. Distinct from the Lord Chancellor are the government’s own Law Officers, the Attorney General and the Solicitor General, whose job is to handle legal cases that involve government departments.
Although the Chancellor is appointed by the PM he is apolitical in the way he does his job which is concerned with:
- appointments of judges ( in theory the Queen appoints them on the advice of the LC)
- advising the government on reform of the legal system
Britain does not have a codified constitution and so has no constitutional court; judges cannot declare actions or laws unconstitutional but they can declare actions, including those of ministers, unlawful. This can happen in specific cases that involve public bodies and individuals ( called case law ), or in cases where judges are asked to clarify the law in principle.
After 2000 the UK will have the Human Rights Act in operation which will transform the system of individual rights. This could bring judges more into conflict with the government. See new system of rights.
Judicial Review
In the context of the study of government this is the process by which the courts question the legality of ministerial actions or those of statutory bodies. The main cases start in the Queen’s Bench division of the High Court. The Court can decide whether an action is legal in terms of the Act ( or Parent Act in the case of statutory instruments ) but cannot in normal circumstances question the legality of the Act itself. The exception to this is in the area of EU matters; the landmark case is Factor Tame 1990. Jack Straw in March 99 sought a judicial review over early release of IRA terrorists.
High Court judges have 3 principle legal powers ( called prerogative writs) to control the actions of statutory bodies and therefore ministers:
1 The writ of Ultra Vires: declares actions unlawful because they are beyond the powers conferred by Parliament
2 The writ of injunction: banning of an unlawful action
3 The writ of Mandamus: ordering the performance of a public duty
The British constitution is a mixture of modernity and extravagant tradition; we see evidence of the latter continually; the above writs are properly called prerogative writs, and derive from the powers of the monarch. The writ of Ultra Vires declares actions unlawful within the existing set of laws. This is the most significant writ in terms of government and politics as it is the most commonly used and brings the courts into conflict with ministers. Ministers derive their powers from parliament when an Act is passed. The courts can therefore declare actions of ministers unlawful if it can be shown that they are not permitted under the relevant Act; those actions would be declared Ultra Vires ( Latin for beyond the powers ).
Examples of rulings in the High Court and Lords
1993 Lords ruled that public bodies could not sue for libel following Derbyshire County Council’s attempt to sue the Sunday Times
Lords found Kenneth Baker in contempt of court. "The most significant constitutional ruling since John Wilkes obtained damages against a minister in the 18th c". Michael Bellof - constitutional lawyer.
Howard's ban on the head of the Moonies visiting Britain declared unlawful
Lord Rees Mogg brought his case in the High Court to block the Maastricht treaty on the grounds that ministers could not give away sovereignty. He lost the case
1995 High Court ruled that the Foreign Secretary Douglas Hurd had acted unlawfully in using the overseas aid budget to encourage arms sales to Malaysia
1996
High Court ruled that the Prison Service had acted unlawfully in calculating sentences, and so some prisoners released and able to claim compensation.
Appeal Court quashed Howard’s refusal to grant citizenship to the Al Fayed brothers. Howard announced appeal to Lords.
1996 A Sikh activist who had spent 6 years in prison fighting extradition was released by order of Michael Howard after the European Court of Human Rights ruled that if he returned to India he risked torture, contrary to the Convention.
1997 Lords ruled Michael Howard, the former Home Secretary, broke the law when he increased the minimum sentences on the two boys who murdered James Bulger.
1999 Lords ruled that 2 Pakistani women should be given asylum in the UK for fear of ill treatment by relatives in Pakistan.
October 99 House of Lords ruled that a homosexual couple could be described as a family for the purposes of tenancy law; enables partners in gay relationships to carry on a secure tenancy agreement as if a heterosexual couple.
October 99 Lords ruled that the British Government was liable to pay compensation to Spanish trawlermen for restricting them from buying British fishing quotas under the Merchant Shipping Act 1988
February 2000 High Court ruled that the Home Secretary had to release the Pinochet medical file
Factor Tame case
A High court judge held up the implementation of the Merchant Shipping Act 1988 pending referral to the European Court of Justice, 1990.
The UK government had tried to prevent Spanish trawlers being registered in Britain; the trawlermen argued it was in breach of the 1986 Single European Act.
European Court of Justice ruled that an Act of Parliament could be suspended pending its review by the European Court.
Judges have become more politicised
Eg the clashes between Michael Howard and the courts in 1995;
Lord Justice Taylor’s response in the Lords to Howard’s call for mandatory sentencing and Lord Justice Taylor’s response that detection was a better deterrent.
The Constitutional position of the Judiciary in the UK
Judges interpret and uphold the law, as laid down in statutes by parliament. They are also at present involved in framing laws as the most senior Judges, the Law Lords, sit in the second chamber, the House of Lords, and can seek to influence Bills as they pass through parliament. Michael Howard's Bill to reform sentencing rules was heavily criticised by the Lord Chief Justice, Lord Taylor, as it went through the Lords. In addition, judges contribute to the system of common law when they make decisions in the courts in specific cases ( interpreting statutes ). Decisions made in higher courts are binding on lower courts, and set a precedent for future cases, that judges can draw on.
At the head of the judiciary is the Lord Chancellor, who is appointed by the PM. Distinct from the Lord Chancellor are the government’s own Law Officers, the Attorney General and the Solicitor General, whose job is to handle legal cases that involve government departments.
Although the Chancellor is appointed by the PM he is apolitical in the way he does his job which is concerned with:
- appointments of judges ( in theory the Queen appoints them on the advice of the LC)
- advising the government on reform of the legal system
Britain does not have a codified constitution and so has no constitutional court; judges cannot declare actions or laws unconstitutional but they can declare actions, including those of ministers, unlawful. This can happen in specific cases that involve public bodies and individuals ( called case law ), or in cases where judges are asked to clarify the law in principle.
After 2000 the UK will have the Human Rights Act in operation which will transform the system of individual rights. This could bring judges more into conflict with the government. See new system of rights.
Judicial Review
In the context of the study of government this is the process by which the courts question the legality of ministerial actions or those of statutory bodies. The main cases start in the Queen’s Bench division of the High Court. The Court can decide whether an action is legal in terms of the Act ( or Parent Act in the case of statutory instruments ) but cannot in normal circumstances question the legality of the Act itself. The exception to this is in the area of EU matters; the landmark case is Factor Tame 1990. Jack Straw in March 99 sought a judicial review over early release of IRA terrorists.
High Court judges have 3 principle legal powers ( called prerogative writs) to control the actions of statutory bodies and therefore ministers:
1 The writ of Ultra Vires: declares actions unlawful because they are beyond the powers conferred by Parliament
2 The writ of injunction: banning of an unlawful action
3 The writ of Mandamus: ordering the performance of a public duty
The British constitution is a mixture of modernity and extravagant tradition; we see evidence of the latter continually; the above writs are properly called prerogative writs, and derive from the powers of the monarch. The writ of Ultra Vires declares actions unlawful within the existing set of laws. This is the most significant writ in terms of government and politics as it is the most commonly used and brings the courts into conflict with ministers. Ministers derive their powers from parliament when an Act is passed. The courts can therefore declare actions of ministers unlawful if it can be shown that they are not permitted under the relevant Act; those actions would be declared Ultra Vires ( Latin for beyond the powers ).
Examples of rulings in the High Court and Lords
1993 Lords ruled that public bodies could not sue for libel following Derbyshire County Council’s attempt to sue the Sunday Times
Lords found Kenneth Baker in contempt of court. "The most significant constitutional ruling since John Wilkes obtained damages against a minister in the 18th c". Michael Bellof - constitutional lawyer.
Howard's ban on the head of the Moonies visiting Britain declared unlawful
Lord Rees Mogg brought his case in the High Court to block the Maastricht treaty on the grounds that ministers could not give away sovereignty. He lost the case
1995 High Court ruled that the Foreign Secretary Douglas Hurd had acted unlawfully in using the overseas aid budget to encourage arms sales to Malaysia
1996
High Court ruled that the Prison Service had acted unlawfully in calculating sentences, and so some prisoners released and able to claim compensation.
Appeal Court quashed Howard’s refusal to grant citizenship to the Al Fayed brothers. Howard announced appeal to Lords.
1996 A Sikh activist who had spent 6 years in prison fighting extradition was released by order of Michael Howard after the European Court of Human Rights ruled that if he returned to India he risked torture, contrary to the Convention.
1997 Lords ruled Michael Howard, the former Home Secretary, broke the law when he increased the minimum sentences on the two boys who murdered James Bulger.
1999 Lords ruled that 2 Pakistani women should be given asylum in the UK for fear of ill treatment by relatives in Pakistan.
October 99 House of Lords ruled that a homosexual couple could be described as a family for the purposes of tenancy law; enables partners in gay relationships to carry on a secure tenancy agreement as if a heterosexual couple.
October 99 Lords ruled that the British Government was liable to pay compensation to Spanish trawlermen for restricting them from buying British fishing quotas under the Merchant Shipping Act 1988
February 2000 High Court ruled that the Home Secretary had to release the Pinochet medical file
Factor Tame case
A High court judge held up the implementation of the Merchant Shipping Act 1988 pending referral to the European Court of Justice, 1990.
The UK government had tried to prevent Spanish trawlers being registered in Britain; the trawlermen argued it was in breach of the 1986 Single European Act.
European Court of Justice ruled that an Act of Parliament could be suspended pending its review by the European Court.
Judges have become more politicised
Eg the clashes between Michael Howard and the courts in 1995;
Lord Justice Taylor’s response in the Lords to Howard’s call for mandatory sentencing and Lord Justice Taylor’s response that detection was a better deterrent.
Fine, I can live with that, but right now we're having an amendment placed before us, a new government position, a big long article about England's court without any comments about what we're supposed to learn out of it, whether or not the court is actually a part of the government, and people talking about the court being able to file cases itself.
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