How effective are the judiciary at protecting civil rights in the UK (30) E

Essay: How effective are the judiciary at protecting civil rights in the UK (30) Edexcel/AQA A Level

The UK judiciary has several methods at its disposal that provide an effective protection of civil liberties in the UK. However, in practice, there are several shortcomings that make these protections weak in the face of Parliamentary pressure, which will be demonstrated in this essay.

In terms of rights protections, perhaps the most important development in the protection of rights in the UK has been the installation of the European Convention on Human Rights into UK law via the Human Rights Act 1998. This act effectively has provided a concrete document that outlines the rights of citizens. Since the passing of this act, judges have been able rule more confidently based on the legislation rather than using complex declarations of the common law via precedents. The increased ease for judges and clarity for citizens has increased the effectiveness of rights protection by the judiciary because now the judiciary can use articles in the HR Act to rule in favour of individuals. For example, in the case of Catherine Zeta Jones v. Hello Magazine 2001, the court was able to rule clearly that the article 8 right to privacy outweighed the magazine's article 10 right to expression and thus Zeta Jones' wedding was allowed to remain private. This clearly shows an effective protection of liberty by judges.

Furthermore, a vital protection of liberties can be exercised via judicial review. Judicial review is a process that is conducted in the Supreme Court that hears an appeal over the lawfulness of a case. It is not focused on the rights and wrongs of a case, this would be a case for appeal courts following the above methods, judicial review is simply an examination of the lawfulness of a case. For example, in the case of Home Secretary v. AP 2010 an appeal allowing the government to detain AP on a control order was taken to the Supreme Court to review its lawfulness. The Supreme Court ruled that in fact, based on the 2008 JJ case as a precedent, the appeal court's ruling in fact constituted a breach of article 5, and that the article 5 interests also contributed to breaches under article 8 of the act. The resulting ruling was that the government control order was 'ultra vires' and had to be rescinded. In this way, the judiciary's ability to reverse executive action by ruling it beyond its powers provides a very effective protection of liberties in the UK. Other examples of ministers being ruled ultra vires and ordered to reverse actions following judicial review include the freezing of terrorist assets with parliamentary approval in 2005, and more recently the reversal of Theresa May's immigration points system which again had not consulted Parliament.

Finally, if both the above methods fail then the individual can take their appeal to the European Court of Human Rights. Rulings from Europe are effectively binding on government and often defend the individual. Examples include the Hurst case in 2004 where voting bans for prisoners were ruled in breach of the ECHR, and more recently in 2012 with the blocking of Home Office attempts to deport terror suspect Abu Qatada to Jordan. Both of these cases have proved effectively binding on Parliament and while the prisoners votes issue is still ongoing, Qatada has avoided deportation since 2001 via the courts. This shows the huge protections that judges can impart on civil liberties.

On the other hand, the sovereignty of Parliament does provide a large hindrance to the judiciary's ability to protect liberty. Acts of Parliament are binding on all bodies within the UK, including the Supreme Court. The sovereign status of Parliament puts it above the judiciary, and if a ruling is passed that the government do not like, they can always legislate to avoid the ruling. This was seen in 2005 when in response to the Belmarsh case the government passed the 2005 Prevention of Terrorism Act. This act allowed the use of control orders which got around the judicial ruling banning detention without trial. This shows that the sovereignty of Parliament hinders the judiciary's ability to protect liberty.

In addition to this, judges cannot be pro-active in Britain and must wait for appeals to come before engaging in their protective role. The Belmarsh case of 2004 was 3 years after the original 2001 Anti Terrorism Act and was not brought until the pressure group Liberty brought the case forward in behalf of the detainees. This means that erosion of civil liberty can stand for years until someone challenges it, making the effectiveness of judges appear weak.

Finally, due to the lack of an entrenched constitution, erosion of civil liberty is very easy for the government to do, and very difficult for judges to reverse. Labour's range of anti-terror laws followed by ID cards, the DNA database and expansion of CCTV all were programs that the judges could do nothing about. The sovereignty of Parliament and the implicit nature of the liberty erosion in these bills made it impossible for the judges to overturn any of these provisions, even though they constitute a clear breach of privacy and liberty. The fact that it took subsequent acts of Parliament to overturn these measures shows that while judges can act like an irritation, if Parliament is resolved it can do anything, including scrap the Human Rights Act. This hinders the effectiveness of the judiciary to protect liberty, because if they had outright power to strike down laws like the US Supreme Court, the protection would be far more extensive and effective.

In conclusion, it is clear from the evidence that on a day to day basis rights are generally fairly and effectively protected by the judiciary. The national debate over whether judges have too much power in backlash to the Abu Qatada situation is evidence that in fact judges do effectively protect civil liberties. However, with the drawbacks highlighted, all it takes is for a resolved Parliament to decide national security is under threat for them to erode liberty at will, with the judges powerless to strike down law. For this reason, there remains an underlying ineffectiveness in what the judges can do to protect liberty in the UK.

A grade 'A' essay- which was written in timed conditions over 45 minutes