(4) Judges and Civil Liberties

What powers do the judiciary hold?
1. Historically judges were to apply law, not rule on its legality
2. But there is no codified constitution which allows for interpretation of laws.
3. They cannot declare Acts of Parliament to be unconstitutional (like in the US)
4. The doctrine of Parliamentary Sovereignty makes Parliament the supreme legal authority in the UK – they create and end laws.
5. They could and can declare actions of the executive to be ultra vires (beyond the legal power/authority)
6. Statute law is the highest form of law and upholds the principle of parliamentary sovereignty… but judges can now suspend UK statute law where it contradicts EU law.
7. They can also issue ‘declarations of incompatibility’ when UK law contradicts the HRA
What ‘legislative’ role do the judiciary play?
1. Minority deal with cases of political significance.
2. Interpretation:
  1. the precise meaning of a statute is not always clear, so there is often conflict over what the law is supposed to mean.
3. In such cases it is for the judges to interpret the meaning of law. Interpretations may be of great public significance – particularly if involving government or public bodies.
When does the judiciary and legislature merge?
1. Creating case law:
  1. it is also not always clear how the existing laws are to be applied in a particular case, and it is up to judges to decide this.
2. When such a decision has been made, it is expected that similar cases will be dealt with in the same way – once the application of law in specific kinds of cases is established, the precedents are know as case law.
3. Case law and interpretation of law can be described as ‘judge-made law’, because it is judges, rather than parliament who are effectively making new law.
Civil liberties vs. civil rights?
1. Liberties are ‘negative’ in the sense that they protect you from government
2. Rights are ‘positive’ in the sense that they are rights to enable you to political power… e.g. rights of participation or access to power
What are our civil liberties?
1. Private sphere of existence belonging to the individual and NOT the state
2. Demand non-interference from the government
3. Overlap with human rights
4. Civil liberties based on citizenship and so are particular to states; human rights belong to people in all societies
5. Basic CIVIL LIBERTIES
  1. Freedom of speech
  2. Freedom of the press
  3. Freedom of religion
  4. Freedom of association
What are human rights?
1. The HRA of 1998, incorporates the European Convention on Human Rights into Law
2. The Act was a major constituitional reform in that it marked a shift in the UK in favour of an explicit and codified legal definition of individual rights
  1. The act widened the capacility for the judiciary to protect civl liberties and check the executive power, and legisative power
3. However, the HRA did not introduce any new rights
4. The main impact of the HRA has therefore been that it has made the European Convention (The right for UK citizens to acces the European court of Human Rights) substantially more accessible to UK citizens
5. The European Convention established these rights
  1. Right to life
  2. Freedom from torture
  3. Freedom from slavery or forced labour
  4. Right to liberty and security
  5. Right to a fair trail
  6. No punishment without trial
  7. Right to respect of private and family life
  8. Freedom of thought, conscience and religion
  9. Freedoom of expression
  10. Freedom of assembly and association
  11. Freedom from discrimination
  12. Right to education
  13. Right to free election with a secret ballot
6. The HRA is, nevertheless, a statue of a very particular kind
  1. It does not constitute an entrenched bill of rights
  2. It cannot be used to overturn Act of Parliament
  3. It does not, therefore, invest the judiciary with the powers of constitutional judicial review
    1. Judical review is the power of the judiciary to "review" and possibly over-turn laws, decrees and action of other branches of government and public bodies
7. How much legislative power does the HRA give the judiciary?
  1. Does not constitute as an extended bill of rights
  2. Cannot be used to overturn Act of Parliament
  3. But when a court believes that legislation cannot be reconciled with convention rights a "declaration of incompatibility" is issued forcing parliament to revise the legislation, or bring it in line with convention, or set aside provision through the process of derogalation

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(4) Judges and Civil Liberties

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