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Judge-proofing


The term judge-proofing refers to the attempt to write legislation in such a way that the courts have no chance to oversee decisions made under it. It has often been attempted in the United Kingdom, especially by Labour governments because of their inherent suspicion that the courts represent a Conservative element in the constitution. Typically such a piece of legislation, like the Foreign Compensation Act of 1950, which was the subject of a famous case, Anisminic, in 1968, will set up administrative tribunals whose decisions are intended to be final, and not liable to appeal, on any ground, to any court. What usually lies behind such attempts is either a suspicion of political bias on the part of the courts, or a more general feeling that administrative convenience should outweigh the time-consuming niceties of a fully judicial style of decision making. The desire to judge-proof does not, however, go away. In 2004 the Labour government was only prevented by opposition in the House of Lords from largely judge-proofing the entire political asylum appeals process.


Judge’s rules


The judge’s rules were the informal rules set out by judges to control police procedure during interrogation and arrest in the United Kingdom. Originating in 1912 at a meeting of High Court criminal law judges, they were added to in 1918 and a new set was defined in 1964. They had no official statutory force, so someone treated by the police in breach of judge’s rules could not, for example, sue for this breach. They covered approximately the area that due process covers in other jurisdictions. Cautions had to be given at various stages (see caution on arrest), as with the Miranda warning in the USA, but their operation depended on an informal agreement between judges. If the police did breach judge’s rules in their treatment it might lead to evidence being excluded at trial, but given that the British courts have never operated the fruit of the poisoned tree doctrine (see probable cause) very forcefully, even this was not certain. The rules were made irrelevant by the passing of the Police and Criminal Evidence Act in 1984.


Judicial review


Judicial review is generally used to mean the power of a court to decide on the constitutionality of legislation or other legal rules, and sometimes executive actions of the state. (It has a special meaning in the United Kingdom, for which see judicial review (United Kingdom).) The first modern political system to incorporate judicial review in this sense was the USA, where the Supreme Court established that it had this right over legislation by the Federal Congress in the landmark case of Marbury v. Madison in 1803. It was already accepted that the Federal Supreme Court would necessarily have such a power over the legislation of the separate states. Most written constitutions include some power of this sort in the hands of either a court or, as with the French Conseil constitutionnel, a special body. To some extent a power like this is necessary if the written constitution includes either or both a separation of powers doctrine or a federal structure, because each implies the possibility of one state body trespassing on the territory of another, with the consequent need for an impartial referee. So the French Fifth Republic had to include a body like the Conseil constitutionnel, with something like judicial review powers, because the new Constitution introduced severe curtailment on what legislation the National Assembly, as opposed to the executive, could pass. This despite the fact that France was not a federation, and had a very strong historical culture of opposition to the involvement of courts in politics.


The scope of the power varies, in part according to the constitution, in part through political factors which influence the extent to which the review body in question is prepared to accept responsibility. So, for example, the constitutional position of the Italian and German Constitutional Courts are not very different, but from the founding of the Federal Republic the German Constitutional Court

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