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The Judiciary - Coggle Diagram

- - - - CRA 2005
      - HRA incorporation of ECHR law to empower judges to directly question Acts of Parliament.
        
        Parliament looks to head off potential conflict soo ensures compliance prior.
      - Senior judges can suspend actions of Parliament breaching EU law.
      - Uk judges in conflict with both the executive and parliament across a wider range of policy areas (Maastricht Treaty 1992).
    - - Physical relocation to Middlesex Guildhall in 2009 was merely symbolic.
      - Parliament is under no obligation to fail into line with court’s hearing of declaration of incompatibility of ECHR.
      - Parliament can pass retrospective legislation legitimising actions where the executive acted ultra Vires.
      - The UK leaving the EU means the UK would not be subject to EU law beyond the transition period, reducing judicia scope.
      - Any move to review the HRA would reduce ability to control by Supreme Court (Michael Gove, British Bill of Rights)
  - - - European Court of Justice would no longer have jurisdiction over the UK.
      - Remova of a. Court superior to the Supreme Court could enhance its status, and reduces case load.
  - - - Nickerson v Ministry of Justice
        2014- The Right to Die
        Article 8 of the ECHR could not be used to justify assisted suicide over the Suicide Act 1961.
      - Begum v Special Immigration Appeals Commission and the SOS for the Home Department
        2020- The Right to challenge the withdrawal of British Citizenship
        Held a right under Article 2 and 3 of the ECHR. The SC ruled she would not be allowed to return to the UK to fight her citizenship case in 2021
      - Prorogation Ruling 2019
        Argued the use of roya prerogative must always respect conventions of parliamentary sovereignty and democratic accountability.
  - - - Although no more formal power held than the Appellate Committee, it could be argued the Court possessed greater authority.
      - More independent appointment process
      - Clearer separation of powers
      - Ongoing process of demystification.
- - - - Common feature is the UK Supreme Court
        
        Power to hear appeals and review the actions of other public bodies allows it to establish precedents.
  - - - Significant with the power of judicial review to clarify a legal position where statute law is unclear.
    - - Were once made by the monarch, on the advice of the prime minister and Lord Chancellor.
        
        Lacked transparency and undermined the separation of powers, and undiverse.
        
        Informed the Constitutional Reform Act 2005
        
        Reduced the power of the Lord Chancellor, placing most senior judicial appointments into the hands of an independent Judicial Appointments Commission.
        
        Provided the creation of the Supreme Court, enhancing the separation of powers and making a senior judiciary representative of the broader population.
      - In order to be considered for appointment as a justice in the Supreme Court candidates must have either held high judicial office for at least 2 years or been a ‘qualifying practictioner’ for 15 years.
        
        Due to the statutory qualifications for office and the need for considerable legal experience, it is not socially representative, criticised for elitism.
        
        Women (17% vs 51%), minority ethnic groups (0% vs 14%) are underrepresented.
        
        Oxbridge graduates(92% vs 1%) are overrepresented.
- - - - No one can be punished without trial
        
        Not always maintained in practice
        
        Terror suspects since 2001 including the freezing of assets and indefinite detention without trial.
      - No one is above the law
        
        Always have been those above the law
        
        MPs under parliamentary privilege.
      - The general principles of the Constitution result from the decisions of judges
        
        Parliament remains sovereign and statute law remains supreme
        
        Any legal precedent can be overturned by an Act of Parliament.
    - - Security of tenure
        
        Hard for politicians to bring influence by threatening to sack or suspend. Removing by impeachment requires a vote in both Houses of Parliament.
      - Guaranteed salaries
        
        Paid automatically from the Consolidaed Fund, thus cannot be manipulated.
      - An independent appointments system
        
        JAC under CRA brought greater transparency to the process of judicial appointments.
      - Contempt of court
        
        Under the sub judice rule, the media, ministers and the wider public are prevented from speaking out publicly during legal proceedings.
    - - Anonymity
        
        Judges operate away from the public eye, rarely speaking out on issues.
      - Poltiical activty
        
        Judges are not supposed to campaign on behalf of a poltical party or pressure group. They do retain thei right to vote, nut should not be public record.
      - Legal justifications of judgements
        
        Expected to explain how decisions are rooted in law.
      - Threats
        
        Narrow recruiting pool- bias is difficult as life experiences differ so far from most cases brought to them. (JAC done little)
        
        Recently drawn into more openly poltiical conflicts. (HRA has politicised the judiciary)
        
        Increased conflict between judiciary and legislature could be a threat to judicial impartiality, or could be evidence of i judges increasingly willing to take on establishment in defence of civil liberties.
        
        Factortame v Secretary of State for Transport (1990)
        Established precedent that UK courts could ‘suspend’ Acts of Parliament where they were thought to contradict EU law.
- - - - 2013, the court ruled although the DWP did not ‘establish slavery’ it was still unlawful for acting ultra Vires.
        
        The Court confirmed it was up to Parliament how they wished to proceed.
      - Jobseekers Act 2013 changed the law retrospectively so no offence had been committed, incomparable with Article 6 of ECHR guaranteeing the right to a free trial.
    - - EU Law and the Supreme Court
        
        Under European Communities ACt 1972, UK incarnated Treaty of Rome into UK law, giving it precedence.
        
        Initially, UK would be called to account at the European Court of Justice, but Factortame, UK courts were permitted to suspend UK statute in violation of EU law.
        
        Factortame
        ECJ established precedent where UK courts could suspend any UK statute which violated EU law.
        
        Factortame Limited has challenged the legality of the Merhcnat Shipping Act 1988.
        
        Re registered Spanish boats as Britishj, while purchasing new UK fishing vessels, prior to the Act (catches counted against UK fishing quotas).
      - The Human Rights Act and the Supreme Court
        
        Incorporated most of the articles in the ECHR into UK law, so UK citizens could pursue cases under ECHR through UK courts.
        
        Tigere v Secretary of State for Business, Innovation and Skills
        2015- Tigere arrived from Zambia as her father’s dependent on a student visa. He left in 2003, she remained.
        
        Border Agency took years to realise she had ‘overstayed’ ultimately awarding her with ‘temporary permission’ then ‘discretionary leave to remain’.
        
        Not eligible for student loan because she would not have been able to apply for required ‘indefinite leave to remain’ until 2018.
        
        Accepted appeal on the infringements of her rights to education (Article 2 ECHR), and prohibiting discrimination (Article 14).
        
        Limitations
        Not entrenched nor superior to regular statute.
        Under HRA, cannot strike down statute