22.) The Composition of the Judiciary and the Appointments Process Flashcards
How many justices sit on the UK Supreme Court?
12
What did the Constitutional Reform Act (2005) do in respect to the judiciary?
-Reduce the Lord Chancellor’s power
-Placed judicial appointments into the hands of the Judicial Appointments Commission (JAC)
-Created Supreme Court
What are the qualifications to be appointed to the UK Supreme Court?
-Have a senior courts qualification, or be an advocate in Scotland or solicitor entitled to be in the Scottish Court of Session and High Court of Justiciary
-Be a member of the Bar of Northern Ireland/solicitor in the Court of Judicature of Northern Ireland
Why is the British Supreme Court not considered representative of the people?
-In 2021, it was revealed that 75% of the then serving justices were privately educated, compared to 7% of the public
-92% had studied at Oxbridge, compared to 1% of the public
-0 of the justices were ethnic minorities, compared to 14% of the population
-Furthermore, the justices were much older on average than a member of the public
Give three reasons why the UK Supreme Court was established?
-Full separation of powers between the judiciary and legislature
-Criticism of unclear way law lords were appointed
-Confusion about role and work of law lords from the public
What are the principles of the rule of law?
No punishment without trial - not always kept: terrorist suspects and the Terrorism Act (2000)
-No one above the law: contrast with monarch, MPs “parliamentary privilege” and diplomats with immunity
-Decisions of precedent made by judges, Parliament remains sovereign
What features of the UK justice system support judicial independence?
-Secure tenure: can only be impeached of Parliament vote, not sacked for voting a certain way
-Guaranteed salaries from Consolidated Fund
-Sub Judice rule means no one can speak out publicly during cases they rule on
-Increased separation of powers
-Independent appointments through JAC
-Due to experience, take pride in job, aren’t going to defer to public opinion
Give ways judicial impartiality is guaranteed?
-Anonymity, judges rarely involved with public and expected not to rise to criticisms of their judgement
-Political neutrality, judges may vote but expected to keep opinions private
-Legal justification, judges expected to justify decisions legally, so less room for bias, Supreme Court decisions published on UKSC website
-Judges have high level training and regulation from Law Society
Name threats to judicial impartiality?
-Limited backgrounds of judges: unable to relate (mainly privately educated, Oxbridge, White and past middle age)
-Politicisation of judiciary since HRA, attacks by media and politicians
Give figures for judicial diversity?
-28% High Court Judges are women (2020)
-4% High Court Judges ethnic minorities (2020)
-This is unrepresentative of the UK population
-
Give reasons why the UK judiciary has become politicised recently?
-HRA forced senior judges to be political by ruling on a law’s merit and not its application
-Factortame (1990) case - UK courts can suspend Acts of Parliament if they contradict EU law
-UKSC creation and location (Middlesex Guildhall) subjects them to greater scrutiny
-Politicians break convention by criticising rulings handed down by judges
Give reasons why the UK judiciary has NOT become politicised recently?
-Creation of JAC has made Supreme Court appointments more transparent
-Senior judiciary more independent due to Constitutional Reform Act because Lord Chancellor’s role downgraded
-Conflict between judges and politicians positive as it shows courts willing to challenge government if government does wrong
-Judges still have tenure and guaranteed salaries to stop them being pressured
What is judicial review?
Where a senior judge reviews a law or public official’s actions to determine if it’s lawful
Name an ultra vires case?
Reilly vs Secretary of State for Work and Pensions (2016)
What are the facts of Reilly v Secretary of State for Work and Pensions?
-Reilly argued DWP breached ECHR article 4 against slavery by making her work to receive welfare
-Ultra vires as DWP exceeded parliamentary authority
-Government had already passed new bill which meant offence not ultra vires
-Court of Appeal ruled this change violated Article 6 ECHR - right to a fair trial
What treaty did the UK accept when signing the European Communities Act 1972?
Treaty of Rome
What did the Treaty cause?
European law to supersede British law
What was the Factortame (1990) case?
-Spanish fishing company registered boats in UK, and unloaded catch in Spain, yet it still counted against British fishing quota
-Government tried to close this with Merchant Shipping Act (1988) - and lost the case, the House of Lords saying that the courts have the right to stop UK law superseding EU law
The government lost the case of Tigere v Secretary of State for Business, Innovation and Skills why?
As it was ruled by the UKSC that not allowing her to receive a student loan as she didn’t have indefinite leave to remain was wrong under article 2 (ECHR - right to an education) and article 14 (prohibition of discrimination)
What are some limitations of the UKSC’s power under the HRA?
-The HRA is not superior to regular laws unlike the US Bill of Rights for example
-The HRA can be also be changed or suspended “derogated”
-The HRA can be repealed
-Parliament can ignore the Supreme Court as the Court don’t have the power to get Parliament’s Acts struck down
Why is the HRA still useful despite this?
-Where laws are unclear, a court can create legal precedent that must be followed in future
-The HRA still requires all Acts passed by examined the parliamentary Joint Committee on Human Rights to make sure they’re compliant with the HRA
Give reasons why the judiciary has had an stronger impact on the work of the executive and Parliament?
-CRA 2005 enhanced judiciary’s independence by removing law lords and reducing Lord Chancellor’s power
-Stronger separation between legislature and judiciary, relocation of UKSC allowed judges to be more public
-HRA gave judges stronger ability to question Acts of Parliament and those who work in the executive
-Factortame (1990) precedent allowed judges suspend legislature/executive’s actions if they breach EU law
-Maastricht Treaty (1992) means judges conflict with Parliament in wider areas than previously
-Parliament now tries to avoid this by making Acts HRA compliant before passing them
Give reasons why the judiciary has NOT had a stronger impact on the work of the executive and Parliament?
-Relocation of UKSC did little more than prove symbolic
-HRA allows judges to rule Acts of Parliament incompatible with it but Parliament doesn’t have to listen
-Even though judges can intervene against ministers who have acted ultra vires, those ministers can retrospectively legalise their actions
-Brexit means EU law and Maastricht Treaty doesn’t apply
-Any alteration of the HRA would significantly limit the courts’ ability to question Parliament
What organisation established the European Court of Human Rights?
Council of Europe
Is the Council of Europe linked with the EU?
NO - it is a separate organisation
What’s the difference between the European Court of Human Rights (ECtHR) and European Court of Justice? (ECJ)
-ECJ is EU’s Supreme Court
-ECtHR established by Council of Europe
-
Withdrawing from the Treaty of Rome had what effect?
EU law doesn’t supersede UK law anymore, and the UK is no longer under the ECJ’s jurisdiction
Name three ways in which Brexit has impacted the UKSC?
-EU related caseload
-UKSC no longer ensures EU law’s supremacy
-The UKSC is now the UK’s premier court as the ECJ no longer oversees British cases, enhancing the former’s prestige
What are the three areas that the UKSC’s power lies within after Brexit?
-Establishing/reviewing legal precedent
-Ultra vires rulings against ministers or public bodies
-Declaring laws incompatible with HRA
Name 5 ‘key cases’ that the UKSC has heard?
-R v Horncastle & others (Hearsay evidence for convictions (2009)
-Al Rawi v the Security Service (No secret evidence in court) (2011)
-Prest v Petrodel Resources (Company assets mostly separate from individual assets) (2013)
-R (HS2 action alliance limited) v Secretary for Transport (Consulting not needed under EU directives on HS2) (2014)
-R (Nicklinson) v Minister of Justice (right to die) (2014)
What do these cases potentially suggest?
The UKSC only broke new ground when it questioned Parliament, it isn’t groundbreaking and new otherwise
Give reasons why it could be said the UKSC is “too powerful”?
-Unelected judges - done to ensure judicial independence
-Strong authority and acceptance of the Court by the public
Name Weber’s three types of authority?
-Traditional authority: from customs and traditions
-Charismatic authority: based on leader’s personal characteristics
-Legal-rational authority: mandates from elections
Give some reasons why the UKSC has strong authority?
-Clearer appointment system than that of the Law Lords
-Clear separation of powers
-Demystification: through simple to use website and more coverage in the media
