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The judiciary - Coggle Diagram

- - - - Enormous increase in the power of executive
      - Expansion of executive bodies
      - More questioning and litigating linked society
      - Growth of legal aid
      - General public awareness of rights
    - - Judicial review is NOT an appeal process, the court DOESN'T substitute its own decision for that of the public body
      - Court examines the decision-making process rather than the merits of the decision itself
      - Judges can't judicially review Acts of the UK Parliament , courts can't strike down primary legislation, thus respecting Parliamentary sovereignty
  - - - Upholds parliamentary sovereignty. To ensure that public bodies act within their lawful authority, the courts interpret and apply Parliament's intention as expressed in the statues conferring legal powers on those bodies. Parliament gives those powers on the assumption that they will be exercised only within the jurisdiction conferred. If decision-makers fail to do so -> ultra vires
      - Upholds common law constitutional principles which are protected by the rule of law (fairness and equality). Executive action that breaches those principles can be overturned
  - - - Independence of the judiciary from any executive interference
      - Duty of court to order the executive to comply with the law and not to overreach itself
      - Duty of court to stand between citizens and state
    - - RED LIGHT theory - law is superior to politics
      - AMBER LIGHT theory - role of law and courts in controlling gov power should be minimised to allow the state to function and expand
      - GREEN LIGHT theory: law is separate from and above politics, and public bodies can be limited by law
    - - Government powers need legal limits -> shouldn't be arbitrary or based on wide discretion
      - Public decision-making should be procedurally fair and rational
      - Law should protect fundamental rights and values and access to justice
      - Rule of law enforces substantive and procedural standards. Through judicial review, courts place a template of procedural and substantive legal limits over executive action to determine whether actions fall out of those limits.
  - - - The KENNEDY APPROACH
        
        It is better to locate underlying principle to be protected in the case and the importance of the value threatened to indicate the basis of the court's approach
        
        In doing so, courts are extending judicial review to protect fundamental principles
    - - Judicial review has unique remedies aka PREROGATIVE ORDERS which comprise
        
        MANDATORY ORDERS to compel a public body to perform a public duty imposed on it by statute or prerogative
        
        PROHIBITING ORDERS prevent public body from taking ultra vires actions or decisions
        
        QUASHING ORDERS quash a decision which was ultra vires
- - - - Judicial independence
      - Impartiality
      - Integrity
      - Propriety and the appearance of propriety
      - Ensuring equality of treatment to all before the courts
      - Competence and diligence
    - - EXPLANATORY - explaining judicial actions or decisions, and can apply on an individual or institutional basis. Can take place through: giving reason for judicial decisions in judgement, appeal process, hearings in open court with public access, speeches and lectures promoting public understanding of the role of the judiciary
      - SACRIFICIAL - refers to being disciplined or dismissed because of misconduct
  - - - Sources of deference when courts are assessing how much weight to give to a decision-maker's judgement
        
        CONSTITUTIONAL DEFERENCE: based on the separation of powers and a body's special constitutional function
        
        INSTITUTIONAL DEFERENCE: assessing judgements of the other body based on its specialist competence and knowledge
    - - Picks up momentum in judicial review cases where judges need to locate the country between the lawfulness of a government policy, which they can decide, and its merits, which they cannot
- - - - Is the constitutional responsibility of the courts
      - It is essential that there is unhindered access to courts, a guaranteed fair hearing by judges who are impartial and politically neutral in their decision-making, and that justice is administered openly
      - Justice -> administered everyday in courts with judges determining legal disputes through interpreting and applying the law made by Parliament. In resolving legal constitutional questions, judges also help to shape the constitution
    - - Rule of law = indispensable bedrock of a free and democratic society
    - - With the increasing power of government, the function of calling executives to account couldn't be more important. The judiciary acts as a strong check on arbitrary or unlawful exercise of government power through the mechanism of JUDICIAL REVIEW