A Legally Binding Contract.

A contract is defined as a legally enforceable agreement between two or more parties. Contracts do not have to be extensive documents addressing all possible circumstances, although such contracts are much more easily enforced, rather any agreement can be a legally binding contract provided it contains four elements: Offer, Acceptance, Intention, and Consideration.

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Improperly Obtained Evidence.

Historically the court has refused to exclude any evidence on the basis of how it was obtained. Principally, this is because the evidence exists and ignoring it would hinder the pursuit of truth. It is, however, argued by many that the use of improperly obtained evidence undermines the integrity of the trial. A contemplation of both perspectives reveals that the best resolution is an exclusion policy based upon the reliability of evidence, regardless of the method by which it was obtained.

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Small Business Structures; Tax & Liability.

There are many structures a business can take, each changing the extent of liability held by members and how its income is taxed. Small businesses are likely to take one of four common structures: Sole proprietorship, Partnership, Private Limited Company (Ltd), or Limited Liability Partnership (LLP).

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Parliamentary Sovereignty and Europe’s Limitation on It

Parliamentary supremacy is the idea that parliament is the supreme law making body in the UK. The authority for this power stems from Article IX of the 1689 Bill of Rights which states that the freedom of speech, debates and proceedings in parliament are not to be impeached or questioned in any court or outside of parliament. The principle of parliamentary sovereignty was further defined by Dicey in 1885 who explained that the law making powers of parliament are unlimited, the validity of parliament and its laws cannot be questioned and that it is impossible to entrench an Act of Parliament limiting the law making power of future parliaments.

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‘Should the Government pay obese people to lose weight?’

The notion of obesity has been an underlying problem in Western society ever since the development of capitalism. Overweight, unhealthy individuals have become an icon of economic prosperity, but have brought about a barrage of problems; both for themselves and for society as whole. It is estimated that around 24% of adults in the UK are obese, and the World Health Organisation further predicts that around 74% of men and 63% of women will be obese by 2030. The National Health Service, is plagued with claims concerning various health defects that have arisen due to obesity, thus, is powerless to deal with often more harmful and detrimental illnesses. Hence, the government has often been pressurised to take greater measures to impede the rise of obesity, with one plausible solution being to offer a financial incentive to avert the individuals from succumbing to obesity.

Offering a financial stimulant to obese families will incentivise them to eat healthily albeit to a certain extent. It is common knowledge that obesity is prevalent in families who typically have a low amount of disposable income to spend on food, which drives them to excessively consume foods that are instant, due to the seemingly low cost. Thus, the financial incentive may drive them to consume healthier foods that in-turn may result in less claims for the NHS. The additional funds that are pumped into the NHS to deal with obesity related diseases could instead be utilised to incentivise these families. This would further be economically beneficial for these families and thus, could bring about benefits for both the individuals and the government.

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Prisons; an incomplete solution to an unsolvable problem

Prisons, a site for reformation and metamorphosis into an exemplary law-abiding citizen; or a haven for society’s underclass to idly loiter their remaining days disenchanted by society’s interpretation of the ever-changing notion of justice?

Based on the Strain theory and the perception that crime results from ‘anomie,’ it is evident that our culture includes but the structure excludes the disadvantaged; exemplifying the fact that there is a distinct statistical association between recorded crime and income inequality and social class.

In comparison to the general population in the UK; prisoners are 13 times more likely to have been unemployed, and 2.5 times more likely to have had a family member convicted of a criminal offence; hence reaffirming the sentiment that the ‘underprivileged,’ are more liable to end up in confinement. Akin to Young & Lea’s (1993) claim, ‘the poor suffer disproportionately from all the more serious forms of crime’.

As society has developed the notion of crime has been re-evaluated and the government’s persistence in promoting tougher penalties has been greatly scrutinised; as it is questionable whether putting an individual in solitary confinement is beneficial for society. Statistics prove that 74% of convicted criminals re-offend within nine years of leaving prison. Thus, is the £40,000 of taxpayers’ money that is pumped into supplementing and upholding our system of justice doing its worth? Breaking the cycle of crime in our society that has been the fundamental ambition behind reformations to our justice system; and the continuous funds that our coalition is injecting into upholding this ideology even in times of economic downturn has led many to question; is it worth it?

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Is Taxation a Crime?

Taxation is an integral ingredient of every commercial, corporate and personal transaction. Every facet of our capitalist-fuelled lives involves tax in some respect or form. It is the indispensable element of revenue for the government and it further paves the way for societal development as it results in the development of public goods such as roads and hospitals. However, the identification of taxation as being a form of theft has been the focal point of much deliberation in recent years with autarkists and anarcho-capitalists holding the belief that taxation is a violation of the non-aggression principle by the government. It has further been the subject of multiple political-philosophies stemming from Murray Rothbard’s ‘The Ethics of Liberty,’ in which he argued for the legitimacy of tax resistance and evasion.

Supports of the notion of taxation however, assert that no such violation takes place as they put forward the thesis that the matter of social contracts justifies the government’s actions is reaping tax. The funding of societal provisions which stimulate economic growth such as the development of schools and public institutions are wholly dependent on taxation and thus, impeding the collection of tax will have significant ramifications on society. Without taxation, law and order will further be deterred with the government having no means to reinforce justice which will inevitably place the future of the country in the hands of the Bourgeoisie, sending society down the Marxist spiral.

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Should We Render British ISIS Militants Stateless to Reduce the Risk of Terrorism to National Security?

Contributed by Joe Timmins

Finding the Balance between the Human Rights of UK Citizens engaging in ISIS Activities and the Risk to National Security

The Islamic State of Iraq, more commonly known as ISIS, has dominated the press in recent months. ISIS is like an Iraqi franchise of al-Qaeda that rebranded itself as ‘ISIS’ in April last year. ISIS is an extremist Islamic group that wants a Caliphate, a huge Islamic state that encompasses all Sunni Muslims in the world. But why does this concern the UK? ISIS claim to have fighters from Britain, as well as the United States, France, Germany and other European countries. There is much confusion over how many Britons have gone to fight in Iraq and Syria, with the Foreign Secretary William Hague claiming the number to be about 500 people however some people such as Khalid Mahmood, Labour MP for Birmingham claim this number to realistically be more like 1500 people. My article does not focus on the activities of ISIS, but more on the Human rights of the young Britons who have travelled to Iraq and Syria to fight, and whether it is legal to render them stateless by refusing the previous citizens entry back into the UK.

Using a cost-benefit analysis process, we can assess the possible long term danger of allowing ISIS militants back to the UK. Firstly, If Britain opens its doors to IS jihadist members; an international terror threat could be posed to Britain. Britain would face the long term effects of the conflict as young British Muslims who fought in Iraq and Syria, war-torn countries, would return to the UK possibly increasingly radicalised and pose the threat of committing violence within the UK. On balance, it would seem reasonable to assume that if any ISIS militants travelled to the Middle East to fight, aware of the possibility they could not return to the UK, it would be fair to bar militants returning. However, originally the first Britons to travel to the Middle East were British Syrians, followed by the Kurdish community. There is no evidence to suggest that these people have took part in any terror related activities, and played any other role than to protect their family homeland from ISIS militants who attempted to sweep through the whole of Iraq and Syria. It was only two years ago that the first British Muslims went, bringing the possibility of them joining the violent ISIS group. Consequently, it is very difficult to bar entry to UK citizens returning to the UK from ISIS states as little evidence can be proved as
to who participated in violent crimes and who did not.

In September of this year, the prime minister proposed new laws giving police temporary power to seize passports of citizens suspected of joining ISIS in order to prevent them from re-entering the country. This temporary emergency power was prompted by a video showing an apparent British national ISIS militant, beheading the American journalist James Foley. This gruesome act alone is indicative of the ideology of the group -dangerous and destabilising. There are two United Nations Conventions that cause a legal problem here though. The Status of Stateless Persons 1954 and 1961 Convention on the Reduction of Statelessness serves to prevent the State from rendering a citizen stateless. Moreover, rendering a person stateless, and refusing them access to the UK is arguably contravening the Right To Family Act.

Regardless of this, I support David Cameron’s decision to refuse ISIS militant’s access back to the UK. The purpose of the rule of law is to ensure peace; made possible through a code of accepted behaviour. If somebody, including an ISIS militant, chooses to break this peace and bring harm and terror to somebody else’s life, I would argue that they have lost certain rights as a citizen under a particular rule of law. In addition, under David Cameron’s proposals, sufficient evidence must still be attained proving a person is going to be engaging in terrorist activity before their passport can be taken ensuring a just use of the legal system. As David Cameron said, “Adhering to British values is not an option or a choice. It is a duty for all those who live in these islands…Passports are not an automatic right”. Trying to protect the UK against terrorism, while still allowing members of terrorist organisations certain liberties to comply with Human Rights Laws and Laws banning a state from rendering a citizen stateless, is ineffective and hampering the fight against global terrorism. Otherwise, leaders have to fight the war against terrorism with their arms tied behind their backs.

 

Section 5 (Public Order Act 1986)

Contributed by Yong Gyum Kim

What do you define as being insulting?

Dependant on the nature of your surroundings and the culture you are used to, the notion of being insulted differs for each and every individual. Thus, in order to establish a common ground the Public Order Act was introduced in 1986, which set out to maintain and uphold the social rights of each citizen. According to section 5 of this act,

(1)A person is guilty of an offence if he—

(a) uses threatening, abusive or insulting words or behaviour, or disorderly behaviour, or

(b) displays any writing, sign or other visible representation which is threatening, abusive or insulting.

This act however has come under great scrutiny in recent times due to the excessive manipulation it has endured; which have resulted in a plethora of controversial arrests and malpractice on the part of the police and prosecutors. For instance, an Oxford University Student in 2006, was apprehended for questioning the sexuality of a horse, and for informing the officer that the mammal was ‘gay.’ He was later charged under this act and taken to court over the matter. Furthermore, a sixteen-year old boy was arrested under the legislation for peacefully holding a placard that read ‘Scientology is a dangerous cult’, on the grounds that it might insult followers of the religious movement.

Freedom of speech is an integral human right that should not be imposed upon, as per stated in the UN Declaration of human rights; every individual should possess the right to voice their thoughts without the fear of being persecuted or penalised.

Thus, the fact that because of this, multitudes of individuals are having to spend countless hours in police cells, and in trial is simply absurd, and it breaches one of the most primitive and fundamental rights that have been given to man.

The rule of law requires that people should be governed by accepted rules, rather than by the arbitrary decisions of rulers. These rules should be general and abstract, known and certain, and apply equally to all individuals.  Thus, even the slightest discretion in judging the soundness of the deed results in the law becoming flawed as for instance, the notion of  ‘insulting’ takes on different definitions when applied to different individuals; therefore this law is too malleable in the conditions of its convictions, and is a menace to one’s liberty .

The law rightly protects us against discrimination, harassment and incitement to violence. It should not be used to protect us from mere insults, and should not impede the right that is Freedom of Speech.

Former shadow home secretary David Davis, a leading campaigner for civil liberties, said reform was ‘vital to protecting freedom of expression in Britain today’.

Indeed the American Declaration of Independence of 1776, states that;

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, and that among these are Life, Liberty, and the pursuit of Happiness.”

Thus, it is evident that this act and this law needs to be discarded or reformed with immediate effect, for the benefit of the individual, for the benefit of society and for the benefit of mankind.

 

What is Justice?

Contributed by Yong Gyum Kim

Before this statement can be sufficiently evaluated, one needs to consider the notion of justice in the mind of the Law. Justice can be defined as; ‘the proper administration of the law; the fair and equitable treatment of all individuals under the law.’ It can also be characterised as being the moral rightness and fairness, whereby every individual receives his/her due from the system.

However, contrary to popular thought, there have been a multitude of cases in recent years which have disordered and upset this system of Justice.

An exemplar of this case would be the Oscar Pistorius murder trial of his late girlfriend Reeva Steenkamp which eventually ceased with the sentence of 5 years in prison. This affair was clouded by a barrage of nefarious claims from both the prosecution and defending sides on the nature of Pistorius’ mind-set, and the reasoning behind the killing itself. Many argued that the case was partisan prior to it even starting as a result of Pistorius’ prestige and the fame that he had accumulated on a national and global scale. In what was South Africa’s trial of the Century, which had accumulated millions of spectators from all over the globe, the nation’s golden-boy who had united a country embroiled in racial feuds with his heroic sprinting, and an individual who had been idolised by countless youths from all over the world; fell from grace and was consequently belittled of his wealth and fortune which he had amassed with his cachet. However, it is still disputed whether he had essentially, ‘bought his way,’ to a light-sentence, as crimes akin to his would have normally brought about a 10-15 year sentence. Here, a parallel can be drawn to the celebrated American soccer star OJ Simpson, who was found not guilty of murdering his wife Nicole Brown and her friend Ron Goldman in 1994. He too, was perceived as having purchased his way through to freedom.

However, contrary to these two superstars was the case of the South African musician Molemo “Jub Jub” Maarohanye, who was convicted of murder and was given 20 years for a case that was parallel to that of Pistorius. He had neither fame nor fortune and was thus, left to bear the brunt of justice.

These episodes make one ponder whether authentic justice is truly attainable; or whether it is coloured by race, gender, wealth or prestige.

Causation, Good Samaritan Laws and Blind Men Walking off Cliffs

Contributed By Joe Timmins

If Person A, a Blind Man, is Walking Towards the Edge of a Cliff and Person B watches Person A do so Without Stopping him, is Person B guilty of killing Person A?

Please note that for ease of reference, ‘he/she’ will be replaced by ‘he’.

This is a legal problem centered on the issue of causation. English law requires the Prosecution to prove the Defendant has two parts to each offence- Actus Reus, the physical conduct of committing a crime and Mens Rea, proving the defendant was aware that his conduct would lead to the crime or should have been aware. Once Actus Reus and Mens Rea have been proved, causation has also been proved connecting the defendants conduct with the resulting effect.

In the case of Person A and B, to help us understand whether Person B is guilty of the unlawful killing of Person A we can use a ‘but for test’ (Sine Qua Non) to determine factual causation. We must ask ourselves, ‘but for what Person B did (failed to act), would the consequences to Person A occurred’. The answer to this is no, and therefore causation has been proved in fact. If Person B had taken reasonable measures to inform person A he was walking off a cliff, person A would not have died. Person B’s failure to act is an indirect cause of Person A’s death. But the factual cause merely establishes a preliminary connection between the act and the consequence. Having now passed that test, we must determine whether Person B is a legal cause of Person A’s death. Legal causation occurs when a person’s conduct is a substantial factor in bringing about harm. I would argue that Person B’s failure to act very much was a substantial factor in bringing about harm to Person A. Person A was a vulnerable man who must often been reliant on the people around him to aid him in his day to day life. It is reasonable to assume that Person A had no intention to walk off the cliff, and therefore it cannot be argued that even if Person B was to intervene, Person A would have continued to walk towards the edge of the cliff- Emphasising the significance of Person B’s omission to act.

It would seem that Person B’s case is looking very weak, and criminal charges of murder or gross negligent manslaughter would not be surprising. After all, the fact that there would have been a time gap between Person A walking towards the edge of the cliff and then falling off suggests that there was malice aforethought by Person B which would give a prosecution team grounds to open a murder trial. In addition, I would hope that the fact that Person A was disabled would suggest anybody including his family or member of the public would feel they have a duty of care to safeguard him. Seen as this duty of care was breached, should Person B not be criminally punished?

Despite all this, Person B cannot be found guilty of any unlawful killing. The Actus Reas element cannot be proved as the act of omission only applies if you do not do something that the law requires. For example, a parent who fails to feed their baby, resulting in the baby’s death would be guilty of unlawful killing as parents are required by law to look after their children. In this scenario however, under English law, there is no liability for a failure to act to prevent harm or wrongdoing or a crime being committed.  This means Person B was under no legal duty to try and stop Person A walking over the cliff edge, even if he was close enough to do so. The reason for this is because the UK does not have a ‘Good Samaritan’ law whereby a defendant would commit a crime for not doing what he should have, as France does. In the eyes of English law, as Person B took no positive action to cause Person A’s death, B did not commit a crime or become a party to it just because he could have took reasonable action to prevent it.

To conclude, Person B has a moral obligation to take at least reasonable care to prevent the death of another man. Legally however, there is limited scope under English law to enforce any punishment, if any at all. Seen as from the information given, we can assume Person B was not under any contractual duty, voluntary duty, or duty derived from statute (to name a few), Person B was not obliged to prevent the death of Person A. This could change very soon in the UK following a press release on the 2nd of June this year when Justice Secretary Chris Grayling announced ‘Good Samaritans and community heroes will have the law on their side in the future’ with new legislation proposed to come into place at the beginning of 2015. Good Samaritan laws offer legal protection to people who give reasonable assistance to those who are in peril, and encourage people to offer assistance. The purpose of the protection is to encourage people to offer assistance who may be hesitant for fear of being sued or prosecuted for unintentional injury or wrongful death. In the future, this may be accompanied by a duty of rescue as there is in France and Germany. In France, ‘deliberately failing to provide assistance to a person in danger’ can be punished by up to 5 years imprisonment and a fine of up to $100,000. While I cannot foresee a duty of rescue entering the English legal system anytime soon, the newly proposed Good Samaritan laws are a step in the right direction to prevent any future real life stories similar to that of Person A and B; and common sense will become the order of the day opposed to hesitant bystanders fearing legal liability

 

The Death of Meritocracy: Positive Discrimination

Contributed by Joe Timmins

    The British Equality Act 2010 was based on British principles that gender should never have any influence in employment. Amendments to the Equality Act in April 2011 allowing positive  discrimination, or “positive action” as our politicians like to say to defer attention away from the fact that they are encouraging discrimination against groups in society and people in their own constituencies, contradict British values and the amendments should be repealed.

Positive action, for those that are not familiar, is the act of giving preferential treatment to under represented groups in society. While I will be focusing on positive action to correct the disproportionate ratio of men to women in senior positions, please note  that this is not the exclusive use of positive action. This is because the Equality Act replaced the Race Relations Act 1976, Sex Discrimination Act 1975 and three major statutory instruments protecting discrimination in employment on grounds of religion or belief, sexual orientation and age. Therefore positive discrimination can also be used to give preferential treatment to ethnic minorities being called to the bench for example, a white male dominated profession.

I was inspired to write on this topic after reading in the newspaper that the Judiciary Appointment Commission was beginning to enforce positive action. As it stands, it is not unlawful for a women to be appointed to the bench ahead of a man if both candidates are of equal merit. Imagine this scenario: Person X has 12 A’s at GCSEs, 3 A levels (AAA), and a Bachelor of Law from Kingston university. On top of this , person X has had a successful career working in partnership with person Y as a barrister. Now imagine Person Y has 12 A’s at GCSEs, 3 A levels (AAA), and a Bachelor of Law from Kingston. On top of this , person Y has had a successful career working in partnership with person X as a barrister. Who would you hire? You can’t say. They’re seemingly indistinguishable. But what if I told you person X is me and person Y is Sophie, a women, and therefore I do not get the job. This is not the solution to getting more female judges. Instead we should be encouraging women into the profession through childcare arrangement schemes, offering longer maternity leave, offering greater protection against preexisting prejudice through legal reforms and that’s just to name a few options. At the moment we are setting the impression in young peoples’ minds that it is acceptable to consider gender during employment and corrupting the generation of people that are much more liberal than ever before. The April 2011 amendments enforced on us by the European Commission are radical and unnecessary when we are seeing a rise in the number of women in senior positions anyway. Antagonising the rest of the population and women who achieved their position under the old system based exclusively on merit is equally unnecessary as  a result.

In reality the use of positive discrimination is limited, but likewise to many laws in the English legal system, it is the principle of the laws that count and this often sets our legal system apart from those, in continental Europe for example, that employ Roman law. Therefore the limited use of positive discrimination does not hinder the argument that the April 2011 amendments should be repealed. The use of positive discrimination in the Equality Act also presents an interesting argument that the European Commission perhaps has too much influence over our legal system. The changes in 2011 directly opposed the original Equality Act which explicably stated ‘merit’ is the only legal determinant when employing someone. I hope that positive discrimination will be outlawed very soon in the same way every other form of discrimination has been; and then stay that way.

Can Bribery Ever Be Considered a Normal Part of Doing Business?

Contributed by Joe Timmins

Before this statement can be evaluated, we need to first to define bribery in the eyes of the law. The UK’s most recent and revised legislation regarding bribery is the Bribery Act 2010. This law states that a person is guilty of an offence if they promise or give a financial or other advantage to another person to induce or reward a person to perform improperly a relevant function or activity. The Bribery Act 2010 therefore covers nearly every possible aspect of day to day life. It criminalises footballers giving away own goals due to payment from the opposing team to making it illegal for business men to gain an advantage over their competitors through discrete payments during commerce. As the purpose of bribery is to induce a person to perform their job improperly, often breaking their contract and code of conduct, bribery can never be considered a normal part of doing business.

 Bribery is against the principle of transparency in business. It eradicates the openness and communication we expect in the buying and selling of goods and services and does not allow for an equal playing field in doing business. Most significantly, bribery inherently takes away any accountability of the individual(s) committing the offence due to the inconspicuous nature of bribery payments. As both the receiver of a bribe and the person offering it is committing a crime, there is no incentive for either party to reveal any wrongdoing. It is evident that bribery is viewed as socially unacceptable as bribery is always kept out of the public domain. If there was any future for bribery becoming a normal part of doing business, we would see it emerging in our own day to day life’s as it becomes socially acceptable. This is not happening. Business needs government regulation in order to operate efficiently essentially with transparency. Deregulating activity such as bribery in business could create a culture of private firms being above the law. This has the potential to damage business ethics including non compliance of laws protecting employer’s rights.

Bribery can also never be considered a normal part of doing business due to the dangers of a pro bribery attitude spreading into all walks of life. In the same way tipping emerged in the 1700’s, only used as a gratuity to the server of your drink in a bar, tips are now commonly given for a range of services including taxis. A bribery mentality could grow in the same way a tipping mentality has grown. What if a future with bribery considered a normal part of business, led to a need to bribe your child’s teacher into giving them a role in the school nativity? Or a society where bribery was needed in order to get into a cinema? This would create an immoral society, with money as your passport to selfishly gaining an advantage over others in accessing goods and services. Moreover, a culture of bribery would see the loss of the system of meritocracy. Class division would be exacerbated as the wealthy will stay wealthy by making bribes with ease in order to do business while poorer people will enter a vicious cycle of never being able pay a substantial enough bribe to do business.

Business is the practice of making ones living by engaging in trade. The trade price operates by supply and demand and does not account for any extra payments such as bribery. If there is bribery, it is an additional cost that has to be recouped somewhere else in the production process.  This would see customers being charged higher price or suppliers cutting costs. This may be through cutting the numbers of workers, or the use of poor materials and shoddy workmanship. These limitations of bribery make it impractical as a realistic method of doing business.

One of the most recent international companies being investigated for bribery is SWECO (March 28th 2014). The World Bank has debarred SWECO environment for 3 year s following their acknowledgment of misconduct of two senior employees who paid for a trip for the Head of Project management and his family during the amendments of two World Bank financed contracts in return for confidential information. This notable recent case of bribery, and the result of the investigation, provides evidence of how unacceptable bribery is recognised on an international scale.  On an international basis, the common practice of bribery in many countries prevents honest and well governed international trade as these companies are simply unwilling and unable to contemplate offering illegal incentives to conduct basis. This reduces international competitiveness.

“In the corrupted currents of this world
Offence’s gilded hand may shove by justice,
 
And oft ’tis seen the wicked prize itself
Buys out the law; but ’tis not so above:
There is no shuffling”

– William Shakespeare (1564–1616). Claudius, in Hamlet, act 3, sc. 3, l. 57-61.

 

The Origins of Judicial Reviews

Judicial Review in simple terms is the act of judges being able to interfere with the decisions made by government officials. A government official in this case can be assumed to be anyone with any amount of public accountability, a good example would be anyone that currently holds a position in government; such as William Hague the current Secretary of State for Education. The extent by which a judge can interfere differs by the country, in the US where arguably Supreme Court judges are the most powerful; judicial review wasn’t even written in the original constitution it was added in 1803. In the US these judges can strike down ‘unconstitutional legislation’, this is significantly more than UK Supreme Court judges who cannot do so, but can still exercise the ability to overturn wrongful decisions made by government (as can US judges).
The question then remains, how did judges even get this ability to interfere with government decisions? The concept of Judicial Review was written into Article lll of the constitution after the controversial Marbury vs Madison case, in which Congress and the Supreme Court were found to be in conflict. The delicate and more overarching issue here is whether these unelected judges have the right to intervene in decisions made by elected public officials. By nature a public decision exercised by an unelected individual is illegitimate, so what makes judges distinct from this idea?
The Marbury vs Madison 1803 case forced the courts to lock horns with congress. William Marbury was newly appointed, by President John Adam, the new Justice of the Peace of the District of Colombia. However the papers which gave William Marbury his new powers were not delivered to him. It was found that Secretary of State James Madison had refused to deliver these papers. Marbury appealed to the Supreme Court to issue a ‘writ of mandamus’ essentially a piece of writing that allows the courts to order an individual to perform a particular act. Of course the courts considered issuing this writ, when the Chief Justice John Marshall noticed that this particular writ came into conflict with the Judiciary Act 1789, as the courts were exceeding their constitutional jurisdiction. This act in simple terms forbids the judicial branch from ‘stepping foot’ into the federal branch of government. This separation of branches being established in Article lll of the Constitution.
This lead to a problem, the courts found that there was a problem with the decision made by public official James Madison but there was not much that they could do, as they legally could not issue a writ. Chief Justice Marshall dug deeper and found that there appeared to be a conflict between the Judiciary Act 1789 and Article III of the constitution. Whilst the Judiciary Act 1789 gave the Supreme Court the power to issue writs to anyone, under their jurisdiction (all US citizens), where Article III stated that the exceptions to court decisions would be ‘Regulations as the Congress shall make’. The problem here was the James Madison’s refusal to deliver the papers were considered a Congress regulation as he was a public official.
With the background covered, the decision of the case was a controversial one. What happens when Congress and the Courts clash? Chief Justice Marshall pointed to the judges’ oath to ‘uphold the constitution’ which he and many other judges interpreted as the ability to decide what applies in any given area of legal conflict. It was later written into Article III that judges had the ability to strike down any ‘unconstitutional’ acts of congress in other terms any act that came into conflict with the constitution. After judicial review was written into Article III the Judiciary Act 1789 was later scrapped on unconstitutional grounds, but Marbury never did get his papers delivered and thus his appointment to Justice of the Peace was made void.
The unelected judges vs elected government officials still remains a problem, not so much in the UK however as they cannot strike down legislation due to Parliamentary sovereignty. The issue is perhaps more prominent in the US because as of 2014, the United States Supreme Court had held 176 Acts of the US Congress unconstitutional. Had a US constitution not existed however it would be hard for any judge to justify as to why exactly they are striking down an act from Congress.
This is what is detrimental to UK Supreme Court judges. They can issue a ‘declaration of incompatibility’ in the case where a piece of legislation infringes on an individual’s freedoms, but cannot strike the acts down. For example in 2009 in Wright v Secretary of State for Health, a declaration of incompatibility was issued in relation to the scheme for placing care workers employed to look after vulnerable adults on a list of people considered unsuitable to work with such adults. It declared section 82(4)(b) of the Care Standards Act 2000 to be incompatible with the right to a fair trial (Article 6 ECHR) and to respect for private life (Article 8 ECHR). As mentioned before, the lack of a British Constitution makes is difficult for judges to launch more effective reviews. As of current times, the judges only really have the European Convention of Human Rights and the Human Rights Act as scope for incompatibility. The problem here being that both this legislations can be repealed through Parliaments sovereignty. All that has to be done is withdrawal from the EU (via the repealing of the European Communities Act 1972) which would make the ECHR void and then the simple repealing of the Human Rights Act 1998.
Both of these situations seem very possible, with a potential in/out EU referendum in 2017 and Home Secretary Theresa May calling for the Human Rights Act to be scrapped/modified should the Tories win the next election.
The debate over judicial review isn’t a simple one, as the arguments on each side appear equipollent and are much too lengthy to go into detail in this article.

Kasim Ali Mehmood