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UK Judiciary and Civil Liberties

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Michael Brodie

on 4 May 2018

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Transcript of UK Judiciary and Civil Liberties

The Relationship between branches
Explains potential strengths and weaknesses of the judiciary's political role.
Useful Video Clips
TASK: Judiciary Structure Pyramid
What does the Judiciary do?
Create a pyramid for the UK Court Structure.

Outline each level's role, including:
*Powers.
*Role of Judges. *Connection to other levels.
Hot Questions
1. How might judges prevent the abuse of power?

2. In what ways might judges be abusing their power?
Was establishing the Supreme Court in 2009 a good idea?
Should politicians interfere in the sentencing of criminals?
How powerful are the judiciary?
Learning Objectives
Learning Outcomes
To what extent are UK judges both independent and neutral?
What is the difference between independence and neutrality?
Task: Independent and Neutral?
Evidence for Independence
Evidence against independence
Evidence for neutrality
Evidence against neutrality
Explains the difference between neutrality and independence.
Evaluates judges neutrality and independence.
TASK: 25 Mark Question
To what extent are UK judges both independent and neutral? (30 Marks)
Step 1: Make a judgement on the question.
Step 2: Make a case to support your judgment (3 explained points).
Step 3: Make a case against your argument (3 Explained points)
Step 4: Sum up your argument.
How far have civil liberties been eroded in the UK
TASK: Civil Liberties Pre 1997 Speed Read
Civil liberties should be allowed to be eroded in order to protect the greater good.
Explains the threats to civil liberties and the means by which they are protected.
Evaluates the extent to which civil liberties are protected in the UK.
How convincing are the arguments in favour of a British Bill of Rights?
Should the UK?
Retain the Human Rights Act (1998)
Create a British Bill of Rights.
Task: Human Rights Act
Using pp.286-287 outline:

1. Outline what it is.

2. How and why was the sovereignty of Parliament maintained?

3. Outline what the Belmarsh Case was and what its consequences were.
TASK: A British Bill of Rights?
The Conservative Party promised in its 2015 Manifesto to replace the Human Rights Act with a British Bill of Rights.
Using pp.287-288:

1. Outline the progress made towards a British Bill of Rights.

2. Outline the arguments in favour of a British Bill of Rights.

3. Which is the most convincing and why?
Explains the Human Rights Act and the cases attached to it.
Assesses whether the UK should adopt a British Bill of Rights.
What has the European Convention on Human Rights ever done for us?
TASK: ECHR Research
Research the following cases and produce a factfile to help with examples:
Which of these judges have a political role?

What is the political role of the judiciary?
Court of Appeal Judges
Supreme Court Judges
Magistrates
Crown Court Judges
Magistrates Court, Tribunals and Family Proceedings Courts
Crown and County Court
Court of Appeal
Supreme Court
High Court
Preside over court proceedings:
A Judge is rather like umpire in court - they make sure both sides follow the rules for a fair trial
They are a source of specialist knowledge - advising on points of law and procedure.

Interpret and Apply the law:
They interpret Parliamentary statutes
In theory - they should apply ‘the letter of the law’ but in practice they have a measure of discretion in their interpretation = can lead to conflicting interpretations

In some cases - to Make Law:
Laws ultimately mean what Judges say they mean - therefore in a sense all law is ‘judge made’ to an extent
However, some law is more Judge made than others e.g. Judges determine the nature of Common Law which is built up on the basis of Judicial Precedent

Decide on sentencing in criminal cases:
Judges have traditionally had a free hand in sentencing
However, this has been reduced in recent years as a result of wider use of minimum or mandatory sentences.

Chair public inquiries and commissions:
Judges have this role because they are seen as impartial and independent
Public Inquiries run like court proceedings
E.g. McPherson Inquiry into killing of Stephen Lawrence (1999); Hutton Inquiry into suicide of David Kelly (2003), the Leveson Inquiry into Press Regulation (2015)

To protect citizens from an overpowering state:
This is a very important role of the Judiciary. If citizens are unhappy with the actions of a govt or a public body (eg: NHS Trust) or feel that their Human Rights = violated - the courts can intervene.
Eg: Anne-Marie Rogers - 2006 Court of Appeal decision in her favour (campaigned to be treated with cancer drug Herceptin)
HOWEVER - the courts cannot strike down legislation as unconstitutional because of the principle of Parliamentary Sovereignty
They can call the govt. to account via Judicial Review - can decide that a dept/minister acted ‘ultra vires’ (beyond their powers)
This means that their role can be political at times.


ConteNT What do judges do?
Know - The safeguards, limitations and principles of the UK Judiciary.

Understand - Whether these restrictions support or damage democracy.

Skills - Debate, categorising evidence and analysis.
Supreme Court
High Court
County Court
Categorises key safeguards, limitations and principles of the Judiciary.
Debates the influences on the judiciary.
Analyses the appointment process and make-up of the Supreme Court.
DEBATE
Who should make decisions about how the law is implemented?
Judges
Unelected
Neutral
Trained
unaccountable
Elected
political
Accountable
Untrained
TASK: You're the Judge
Should the UK allow judges to overrule Parliament?

What would the benefits and drawbacks of this be?
'there is no liberty, if the judiciary power be not separated from the legislative and executive.'
Montesquieu
Learning Objectives
Learning Outcomes
Know - What judicial neutrality means and how it is maintained.

Understand - The arguments for and against judicial neutrality.

Skills - Categorising evidence, comparison and exam practice.
Supreme Court
High Court
County Court
Categorises features of neutrality and independence.
The Investigatory Powers Act (2016)
http://www.bbc.co.uk/news/technology-38150530
Civil Liberties
- the Freedoms/Rights that belong to individuals - they protect the individual from the power of the state (generally described as negative rights - eg: right for state NOT to intervene unless the law prevents a certain activity)

Many overlap with Human Rights which belong to all individuals

Key Term: Civil Liberties
Read the handout Civil Liberties Pre-1997.

What do you notice about civil liberties in the UK at this time?

Was change needed?
What change would you have recommended?
Learning Objectives
Learning Outcomes
Know - What civil liberties are, the threats against them and the protection afforded to them.

Understand -The extent to which civil liberties are protected by the UK judiciary.

Skills - Debate, skim reading and gathering evidence.
Debates the erosion of civil liberties for surveillance purposes.
Supreme Court
High Court
County Court
TASK: Protecting Civil Liberties
Work in threes

Complete the research.

Prepare to report back.
Learning Objectives
Learning Outcomes
Know - The place of the Human Rights Act in British law.

Understand - The debate surrounding a proposed British Bill of Rights.

Skills - Explanation, analysis, judgement and debate.
Outlines the debate surrounding a British Bill of Rights.
Supreme Court
High Court
County Court
http://www.bbc.co.uk/news/uk-politics-16708845
What are
and how many can you name?
Case
Details
Why important?
Result
Smith and Grady v United Kingdom (1999)

C.N. V United Kingdom (2011)

Al-Jedda and Al-Skeini v United Kingdom (2011)

Babar Ahmad and Others v. the United Kingdom

Abu Qatada v United Kingdom (2012)

Gough v United Kingdom (2015)

Armani da Silva v United Kingdom (2016)
TASK: What has the ECHR ever done for US?
Learning Objectives
Learning Outcomes
Know - Key cases of the European Court of Human Rights

Understand - The significance of these cases for rights in the UK.

Skills - Research, summary and presentation
Supreme Court
High Court
County Court
Researches key cases brought before the ECHR.
Explains the significance of cases involving the UK in the ECHR.
Evaluates the role of the European Court of Human Rights.
"Justice should not only be done, but must also be seen to be done."

What does this mean?
How far are judges in conflict with government?
Learning Objectives
Learning Outcomes
Know -The different conflicts between government and judiciary.

Understand - The extent of conflict between the judiciary and government.

Skills - Discussion, judgement and analysis.
Supreme Court
High Court
County Court
Issue
Details
Judgement on extent of conflict
Effect on judicial independence
TASK: Conflict or Not?
Sentencing
Examples
Criticism of erosion of civil liberties
Lord Neuberger claiming that there is no more important role” than to protect fundamental human rights.(Nov 2016)
Involvement in key political debates
Judges the extent of conflict between the judiciary and government.
Discusses the meaning of a key principle of the judiciary.
Justice Minister Liz Truss slow to defend High Court judges after Brexit legal decision
HOT Question
What limits potential conflicts over power between the judiciary and government?
EXAM ALERT: To what extent is there conflict between the judiciary and the executive in the UK?
Look at the model response.
* Mark where you think there is Point, Evidence and Analysis.
* Discuss what is good about the response.
* Discuss what could be improved.
Evidence for conflict may be based on the following:
• Disputes over who controls sentencing policy.

• Disputes over the Human Rights Act when its exercise appears to
thwart the state’s ability to maintain state security (Abu Hamza,
Abu Qatada).

• The increasing use of judicial review makes governing more difficult. Ministers are often accused of operating ‘ultra vires’ (e.g.extension of Heathrow).

• Over Freedom of Information cases where judges have upheld decisions of the Information Commissioner to publish information requested mainly by media against wishes of ministers (e.g. Prince Charles’ communications with ministers, some cabinet papers, decision reversed by Attorney general).

• The creation of the Supreme Court has made conflict more likely
and strengthens independence and autonomy

Evidence that there is no conflict can be based on the following:
• Judges are independent and cannot be subjected to political
pressure; each area is simply fulfilling its role. Ministers have
accepted the rulings of the judiciary.

• Judges uphold the rule of law so ministers must be subject to the law like any other citizen.
• Parliament is sovereign which means that with parliamentary
support, ministers can change the law to thwart judicial activism,thus ending a conflict.

• Judges cannot overturn statutes even if they offend the ECHR.

• It is rare for Judicial Review to go against the government

• Judges are not socially neutral, come from the same background as senior politicians and are likely to side with them
How have recent reforms affected the judiciary?
Learning Objectives
Learning Outcomes
Know - Features of the Constitutional Reform Act (2005)

Understand - How far the Constitutional Reform Act created an independent judiciary.

Skills - Creative presentation and debate.
Supreme Court
High Court
County Court
Up until 2005, The Lord Chancellor was a member of the legislature (House of Lords), the executive and the head of the Judiciary
Why do you think this proved untenable in the 21st Century?
AIM: How could this have undermined human rights?
TASK: Constitutional Reform Act Poster
Create a poster which represents the different features of the Constitutional Reform Act (2005)
Things to include:
*Background to reform
*Lord Chancellor
*Minister of Justice
*Judicial Appointments Committee
*Supreme Court
Identifies the reasons behind the Constitutional Reform Act (2005)
Assesses the changes brought about by the Constitutional Reform Act (2005)
Explains the features of the Constitutional Reform Act (2005)
How far is the UK judiciary now independent?
Completely
Not at all
Learning Objectives
Learning Outcomes
Outlines the structure of the UK judiciary.
Know - The structure and role of the judiciary in UK.

Understand - The extent of judiciary's political role.

Skills - Knowledge, understanding and creative presentation.
Identifies the role of judiciary in a political sense.
Supreme Court
High Court
County Court
STARTER: Appointment and Composition
Using the sheet: Complete the following:

What are the strengths of the appointment process?

Is there anyway that the appointment process could be criticised?

What does the table tell us about the make-up of the court?

Why could the make-up be criticised?

How could the make-up be defended?
TASK: Principles, Limitations and Checks
STEP 1: Code the statements into the following:
*Principles of the Supreme Court.
*Limitation on the power of the judiciary.
*Checks on the power of other branches.


STEP 2: Identify and explain the most significant principle of the UK Supreme Court.

STEP 3: Identify and explain the most significant limitation on the power of the judiciary.

STEP 4: Identify and explain the most significant check on the power of other branches.
Is the Supreme Court too powerful?
Learning Objectives
Learning Outcomes
Know -

Understand -

Skills -
Supreme Court
High Court
County Court
Over which branch does the Supreme Court have more power?
Government
Parliament
STARTER: Acting Ultra vires?
TASK: R (Miller) v Secretary of State for Exiting the European Union
TASK: Supreme Court Case Research
DEBATE
Who has most power?
Government
Parliament
Is the executive able to dominate parliament?
Learning Objectives
Learning Outcomes
Know - Features of an elective dictatorship and reasons for government's domination of parliament.

Understand - The extent to which the UK can be described as an elective dictatorship.

Skills - Ranking causes, evaluation and
Supreme Court
High Court
County Court
STARTER: Elective dictatorship
In 1976, Lord Hailsham coined the term 'elective dictatorship' to describe the concentration of power in the hands of the executive. He claimed the only real check on executive power are the periodic general elections and that in between the government can do whatever it wishes to do, including far reaching and irreversible changes.
What evidence is there in support of this argument from recent examples of constitutional reform?
Identifies evidence in support of an 'elective dictatorship' in the UK.
Assesses the importance of different factors which have led executive dominance.
Evaluates the extent to which the executive dominates parliament.
TASK: Government dominating Parliament
STEP 1: Categorise into:
*Government control of parliament has reduced.
*Government maintains control over parliament.

STEP 2: Which piece of evidence holds the most weight and why?

STEP 3: Research an example to support the arguments which do not already have one.
Has the eu achieved its aims?
STARTER: History of the EU
Make a timeline of the history of the EU.
Learning Objectives
Learning Outcomes
Know - The aims of the European Union.

Understand - The extent to which the European Union has achieved its aims.

Skills - Research and evaluation.
Supreme Court
High Court
County Court
CONTENT:The aims of the EU
The EU promotes a single market which promotes the 'four freedoms'. These are:
1. Free movement of goods - duties and taxes cannot be imposed on goods from another EU state. Border checks and regulations are removed.

2. Free movement of services - professionals, businesses and self-employed people can establish or offer their services across the EU. Qualifications in one state are recognised in another.

3.Free movement of people - ABy national of an EU member state has the right to seek employment in another EU state. THey have the same rights in recruitment, pay, social security and housing.

4. Free movement of capital - Many restrictions on capital movements (buying currency and foreign investment) have been removed.
TASK: Aims of the EU
The aims of the EU are set out in Article 3 of the EU Treaty. They include:

*Promoting peace and the EU's values.
*Establishing a single European market.
*Promoting economic, social and territorial cohesion.
*Establishing an economic and monetary union.
Describes the history of the European Union.
Explains the aims of the European Union.
Evaluates the extent to which the European Union has achieved its aims.
TASK: Attaching Evidence
STEP 1: Using the photocopied pages and any other knowledge you have, assess whether the EU has achieved its aims by finding:

a) evidence that suggests the 4 different aims have been achieved.
b) evidence that suggests that the 4 aims have not been achieved.

STEP 2: Which aim has been achieved the most?

STEP 3: Which aim would the following critics of the European Union focus on:
a) Right-wing
b) Left-wing

How has the EU changed British politics?
Learning Objectives
Learning Outcomes
Know - The key institutions of the EU and their roles.

Understand - How the EU has impacted British politics.

Skills - Creative presentation and explanation.
Supreme Court
High Court
County Court
TASK: EU Structure Revision Poster
On your A3 Poster you need to include:

*European Council
*Council of the European Union
*EU Commission
*EU Parliament
*European Court of Justice.

Details on:
*Role
*Membership and current political make-up
*Power
*How decisions are reached.
*Supranational or intergovernmental.
TASK: Impact of the EU
Explains the role of different EU constitutions.
Evaluates the impact of the EU on British politics.
Judges how powerful each EU institutions.
TASK:
Where does sovereignty lie in the UK?
Learning Objectives
Know - Different forms of sovereignty

Understand - How these different forms of sovereignty operate in the UK.

Skills - Inference, comprehension and evaluation.
Success Criteria
TASK: Sovereignty or Not?
As a class can we work out the message of this drawing?
Complete the worksheet in order to reveal where sovereignty lies in the UK.
TASK: Sovereignty Puzzles
Identifies and explains different forms of sovereignty.
Assesses and explains how different forms of sovereignty operate in the UK context.
Evaluates the extent to which UK sovereignty is changing.
Using pp. 175-177:
1. Explain what is meant by:
a. legal sovereignty.
b. popular sovereignty.
c. political sovereignty.

2. Explain 3 ways in which parliamentary sovereignty has been eroded.

3. Why is it sometimes claimed that government in the UK is sovereign?

4. What evidence is there to suggest that the UK is moving away from parliamentary sovereignty and towards popular sovereignty as a defining principle of the UK constitution?
In the age of globalisation, pooled sovereignty means more power, not less.
Jose Manuel Barroso, former President of the European Commission.
Thought Bubble
In what ways and to what extent has the UK lost sovereignty to the European Union?
1. In what areas has jurisdiction passed to the EU?

2. In what areas does the UK keep jurisdiction?

3. Explain what the Factortame case was.

4. Explain the significance of the Factortame case.

5. Explain what quasi-federalism means.

6. Do the transfers of jurisdiction represent a major erosion of UK sovereignty? Compare evidence from both sides.
TASK: European Union Questions
The transfer of sovereignty from the UK to the European Union has gone too far.
Yes
No
Using pp.177-178 (4th Ed)
Learning Objectives
Know - The impact of EU membership on the UK constitution.

Understand - The extent to which UK sovereignty has been eroded.

Skills - Comprehension, Explanation, Judgment, Evaluation.
Success Criteria
Describes areas of jurisdiction transferred to the EU.
Explains the significance of the Factortame case.
Evaluates the extent to which UK sovereignty has been eroded.
Review Bubble
Peer marking exercise.

What we are looking for:
Full sentence responses.
Detailed answers.
Evidence of judgement and analysis.

Highlight areas for improvement and annotate responses.
'On sovereignty, yes of course if Britain were to leave the EU that might give you a feeling of sovereignty, but you’ve got to ask yourself is it real? Would you have the power to help businesses and make sure they weren’t discriminated against in Europe? No, you wouldn’t. Would you have the power to insist that European countries share with us their border information so we know what terrorists and criminals are doing in Europe? No you wouldn’t. Would you, if suddenly a ban was put on for some bogus health reasons on one of our industries, would you be able to insist that that ban was unpicked? No you wouldn’t. So you have an illusion of sovereignty but you don’t have power. You don’t have control. You can’t get things done.'
David Cameron 21.2.2016
Full transcript