2. Politics – The Judiciary
What are the functions of the judiciary?
• The role of the judiciary is to uphold the law
• Judges must also interpret the law
• The judiciary is (in theory) independent and neutral – which
allows judges to perform their designated role in an
effective and fair manner
• In practise, the judiciary may also perform a ‘political’ role
(e.g. the Law Lords debate issues in the legislature, and a
judge can deem any bill incompatible with the European
Convention of Human Rights)

3. Politics – The Judiciary
What is meant by judicial independence?
• “the ability of judges to resist political pressure from the
other two branches of government”
• Judicial independence is maintained by the fact that judges
cannot be easily removed by the government
• In addition, the government does not appoint (or train)
judges
• Judges are appointed on basis of ability, rather than their
political affiliation. They are also unelected – which frees
them from any electoral constraints

4. Politics – The Judiciary
Judicial independence continued …
• By convention, judges are free from undue political
interference. As such, politicians should not criticise any
judge. However in recent years, both Labour and Tory
Home Secretaries have criticised judges who pass
sentences considered to be “too lenient”
• The PM has also criticised the judicial system for failing to
protect the law-abiding majority
• It is also claimed that the Lord Chancellor and Attorney
General have been pressurised by the Government over
certain issues, such as the reluctance to publish legal
advice relating to the Iraq war

5. Politics – The Judiciary
What is meant by judicial neutrality?
• Judicial neutrality implies that everyone is “equal before the
law”, and is maintained by three factors;
• (1) A judge should avoid any political or personal bias
• (2) A judge must not benefit personally from the case in
question
• (3) Decisions must be taken on a fair, and impartial, basis

6. Politics – The Judiciary
Are judges neutral?
• In practise, the social background of judges can affect their
judgment (e.g. judges have been accused of dealing with
certain groups in a negative way, such as animal rights
protestors)
• Political considerations may also affect the position taken
by a judge. For example in the Clive Ponting case in the
mid-1980s, the judge took the side of the government
• The judiciary has also become more ‘liberal’ in recent
years, which has to some degree affected judgements
made in cases concerning terrorism, and asylum

7. Politics – The Judiciary
What are civil liberties?
• “Those rights to which we are entitled to as citizens of a
state.” Civil liberties are a key component of any liberal
democracy
• Examples include the right to free speech, and the freedom
of association
• From 1997 to 2001 civil liberties were strengthened by;
– The Human Rights Act
– The Freedom of Information Act

8. Politics – The Judiciary
Recent developments
• However since 2001, civil liberties have been eroded due to
the government’s attempts to combat the threat of
terrorism, and the high number of CCTV cameras in the UK
(1 for every 14 citizens)
• Unlike the United States, civil liberties are not laid down in
a codified constitution. The first 10 amendments to the US
Constitution relate to civil liberties, and are referred to as
the ‘Bill of Rights’

9. Politics – The Judiciary
How can judges defend civil liberties?
• Via judicial review, if a minister acts ultra vires (e.g. the
illegal deportation of asylum seekers)
• Judges interpret the law, which can at times result in a
judge upholding civil liberties. For example in July 2005, the
power of the police to order youths back home was
quashed by a decision made in the courts
• A judge can often head a public inquiry, which can on
occasions focus upon the issue of civil liberties
• The judiciary can also rule on an important test case (e.g.
the Bosman ruling provides footballers with greater
freedom from their clubs)

10. Politics – The Judiciary
Recent developments
• Since the Human Rights Act was passed, a judge can
declare a bill to have contravened the European
Convention of Human Rights (ECHR)
• In recent years, judges have become more willing to
defend civil liberties due to the emergence of a more
‘liberal’ judiciary
• The judiciary remains the principal defence against the
erosion of citizen’s rights in the United Kingdom. Elected
representatives, the media, administrative tribunals and
pressure groups also play a role

11. Politics – The Judiciary
What limits are there upon the power of the judiciary?
• The law itself. In the overwhelming majority of cases, all a judge can do
is interpret the law as it stands. Judges also have to follow judicial
precedent where one exists. However, in a very small number of cases,
a judge can set a precedent themselves
• EU law, which supersedes UK law (e.g. the Factortame case)
• Parliament, which can simply pass or repeal an existing law if they are
unsatisfied with a court’s decision
• Judges are also constrained by judicial neutrality, which prevents them
taking an active role in party politics. Whilst the Law Lords can debate
issues in Parliament, and judges often head independent inquiries (e.g.
the Hutton inquiry); the power of the judiciary is relatively weak in
comparison to the other two branches of government

12. Politics – The Judiciary
What is meant by open government?
• Open government is an important concept in any
democracy
• According to the principle of open government, the public
have the right to access information held by the
government. As such, open government actually
strengthens civil liberties. For example, the public can
access Cabinet papers from 30 years ago under the ‘30
year rule’
• Britain has always had a “culture of secrecy”, in contrast to
other liberal democracies such as the United States. For
example in the UK, all ministers take an oath of secrecy

13. Politics – The Judiciary
Developments since 1997
• Open government has been enhanced since 1997 due to
the Human Rights Act and the Freedom of Information Act,
but many Acts of Parliament restrict access to information
(e.g. the Official Secrets Act)
• The Liberal Democrats and the Conservatives are in favour
of more open government
• The pressure group Liberty also campaigns in favour of
greater openness