22.) The Composition of the Judiciary and the Appointments Process

Question 1

How many justices sit on the UK Supreme Court?

Answer 1

12

Question 2

What did the Constitutional Reform Act (2005) do in respect to the judiciary?

Answer 2

-Reduce the Lord Chancellor’s power
-Placed judicial appointments into the hands of the Judicial Appointments Commission (JAC)
-Created Supreme Court

Question 3

What are the qualifications to be appointed to the UK Supreme Court?

Answer 3

-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

Question 4

Why is the British Supreme Court not considered representative of the people?

Answer 4

-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

Question 5

Give three reasons why the UK Supreme Court was established?

Answer 5

-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

Question 6

What are the principles of the rule of law?

Answer 6

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

Question 7

What features of the UK justice system support judicial independence?

Answer 7

-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

Question 8

Give ways judicial impartiality is guaranteed?

Answer 8

-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

Question 9

Name threats to judicial impartiality?

Answer 9

-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

Question 10

Give figures for judicial diversity?

Answer 10

-28% High Court Judges are women (2020)
-4% High Court Judges ethnic minorities (2020)
-This is unrepresentative of the UK population
-

Question 11

Give reasons why the UK judiciary has become politicised recently?

Answer 11

-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

Question 12

Give reasons why the UK judiciary has NOT become politicised recently?

Answer 12

-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

Question 13

What is judicial review?

Answer 13

Where a senior judge reviews a law or public official’s actions to determine if it’s lawful

Question 14

Name an ultra vires case?

Answer 14

Reilly vs Secretary of State for Work and Pensions (2016)

Question 15

What are the facts of Reilly v Secretary of State for Work and Pensions?

Answer 15

-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

Question 16

What treaty did the UK accept when signing the European Communities Act 1972?

Answer 16

Treaty of Rome

Question 17

What did the Treaty cause?

Answer 17

European law to supersede British law

Question 18

What was the Factortame (1990) case?

Answer 18

-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

Question 19

The government lost the case of Tigere v Secretary of State for Business, Innovation and Skills why?

Answer 19

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)

Question 20

What are some limitations of the UKSC’s power under the HRA?

Answer 20

-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

Question 21

Why is the HRA still useful despite this?

Answer 21

-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

Question 22

Give reasons why the judiciary has had an stronger impact on the work of the executive and Parliament?

Answer 22

-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

Question 23

Give reasons why the judiciary has NOT had a stronger impact on the work of the executive and Parliament?

Answer 23

-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

Question 24

What organisation established the European Court of Human Rights?

Answer 24

Council of Europe

Question 25

Is the Council of Europe linked with the EU?

Answer 25

NO - it is a separate organisation

Question 26

What’s the difference between the European Court of Human Rights (ECtHR) and European Court of Justice? (ECJ)

Answer 26

-ECJ is EU’s Supreme Court
-ECtHR established by Council of Europe
-

Question 27

Withdrawing from the Treaty of Rome had what effect?

Answer 27

EU law doesn’t supersede UK law anymore, and the UK is no longer under the ECJ’s jurisdiction

Question 28

Name three ways in which Brexit has impacted the UKSC?

Answer 28

-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

Question 29

What are the three areas that the UKSC’s power lies within after Brexit?

Answer 29

-Establishing/reviewing legal precedent
-Ultra vires rulings against ministers or public bodies
-Declaring laws incompatible with HRA

Question 30

Name 5 ‘key cases’ that the UKSC has heard?

Answer 30

-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)

Question 31

What do these cases potentially suggest?

Answer 31

The UKSC only broke new ground when it questioned Parliament, it isn’t groundbreaking and new otherwise

Question 32

Give reasons why it could be said the UKSC is “too powerful”?

Answer 32

-Unelected judges - done to ensure judicial independence
-Strong authority and acceptance of the Court by the public

Question 33

Name Weber’s three types of authority?

Answer 33

-Traditional authority: from customs and traditions
-Charismatic authority: based on leader’s personal characteristics
-Legal-rational authority: mandates from elections

Question 34

Give some reasons why the UKSC has strong authority?

Answer 34

-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