3.1.1.4 the judiciary

Question 1

The supreme courts powers

Answer 1

hear appeals and review the action of other public bodies allows it to establish new rules or ‘precedents’ that affect not only the case in question, but also all subsequent cases.

Question 2

Judiciary

Answer 2

In normal usage the term ‘judiciary’ refers collectively to all UK judges, from lay magistrates and those serving on tribunals right up to the 12 senior justices sitting in the UK Supreme Court. In a wider sense the term might be seen
as encompassing all of those who are directly involved in the administration and application of justice.

Question 3

Does the UK judiciary exist as a single body?

Answer 3

No

Question 4

Legal arrangements across the UK

Answer 4

Scotland and Northern Ireland operate under different legal arrangements from those in place in England and Wales. The one feature common to all three systems is the part played by the UK Supreme Court, which acts as the highest court of appeal from the Court of Appeal in England and Wales, the Court of Sessions in Scotland, and the Court of Appeal in Northern Ireland

Question 5

Lowest level of court

Answer 5

• crown court
• county courts
• magistrates’ courts
• tribunals

Question 6

Crown court

Answer 6

Trials of indictable offences, appeals from magistrates’ courts, cases for sentence

Question 7

County courts

Answer 7

Majority of civil litigation subject to nature of the claim

Question 8

Magistrates’ court

Answer 8

Trials of summary offences, committals to the Crown Court, family proceedings courts and youth courts

Question 9

Tribunals

Answer 9

Hear appeals from decisions on: immigration, social security, child support, pensions, tax and lands

Question 10

High court

Answer 10

• Queen’s bench division
• Family divison
• Administrative court
• Divisional court 1 + 2
• Chancery division

Question 11

Queen’s Bench Division

Answer 11

Contract and tort, etc. Commercial Court Admiralty Court

Question 12

Administrative court

Answer 12

Supervisory and appellate jurisdiction overseeing the legality of decisions and actions of inferior courts, tribunals, local authorities, Ministers of the Crown and other public bodies and officials

Question 13

Divisonal court 1

Answer 13

Appeals from the Magistrates’ Courts

Question 14

Chancery Division

Answer 14

Equity and trusts, contentious probate, tax partnerships, bankruptcy and Companies Court, Patents Court

Question 15

Divisonal court 2

Answer 15

Appeals from the County Courts on bankruptcy and land

Question 16

Court of Appeal

Answer 16

• Criminal Division
• Civil Division

Question 17

Criminal division

Answer 17

Appeals from the Crown Court

Question 18

Civil division

Answer 18

Appeals from the High Court, tribunals and certain cases from County Court

Question 19

Supreme court

Answer 19

Appeals from the Court of Appeal and in exceptional circumstances from the High Court (also Scotland and Northern Ireland). Also, devolutionary jurisdictional issues previously heard by the Privy Council.

Question 20

level of courts

Answer 20

1) supreme court
2) Court of Appeal
3) High Court
4) the rest

Question 21

Constitutional reform act 2005

Answer 21

the CRA reduced the power of the lord chancellor and placed most senior judicial appointments into the hands of a new, independent Judicial Appointments Commission (JAC). It was hoped that this change would enhance the separation of powers and result in a senior judiciary that was more socially representative of the broader population. The Act also provided for the creation of the Supreme Court.

Question 22

Why was the supreme court established?

Answer 22

Before the UK Supreme Court began its work in October 2009, the highest court of appeal in the UK comprised the 12 Law Lords who sat in the Appellate Committee of the House of Lords.

Question 23

The UK Supreme Court was established under the Constitutional Reform Act (CRA) 2005 in response to a number of longstanding concerns:

Answer 23

• concerns over the incomplete separation of powers, or partial ‘fusion of powers’, present in the UK system; specifically, the position of the lord chancellor and the presence of the Law Lords in the upper chamber of the legislature
• criticisms of the opaque system under which senior judges, such as the Law Lords, were appointed
• confusion over the work of the Law Lords — specifically, a widespread failure to understand the distinction between the House of Lords’ legislative and judicial functions

Question 24

Secret Soundings

Answer 24

The informal and secretive way in which most senior UK judges were once appointed. The phrase describes the way in which the lord chancellor consulted in secret with close associates and those already serving in the senior judiciary. The resulting lack of transparency in appointments led to accusations of elitism.

Question 25

Senior Judiciary

Answer 25

The senior judiciary comprises justices of the Supreme Court (formerly the Lords of Appeal in Ordinary, or Law Lords), heads of divisions, Lords Justices of Appeal, High Court judges, and deputy High Court judges.

Question 26

How are supreme court justices appointed before 2005

Answer 26

• Appointments to all positions in the senior judiciary were traditionally made by the monarch on the advice of the prime minister and the lord chancellor. The lord chancellor would consult existing senior judges through a process known as secret soundings.
• It was said that this system lacked transparency, undermined the separation of powers, and resulted in a senior judiciary drawn almost exclusively from a very narrow social circle: public school and Oxbridge educated, white, male and beyond middle age. Such criticisms were at the heart of the 2005 Constitutional Reform Act.

Question 27

How are supreme court justices appointed today

Answer 27

The founding justices of the new Supreme Court were those working Law Lords in post on 1 October 2009. Although these individuals remained members of the House of Lords, they were barred from sitting and voting in the upper chamber for as long as they remained justices
of the new Supreme Court. Under the Constitutional Reform Act 2005 those appointed to the court after 1 October 2009 are not automatically awarded peerages.

Question 28

system of appoint

Answer 28

1) A vacancy arises
2) A five-member selection commission is convened to consider possible nominees and make a selection based on merit
3)The commission submita a report to the lord chancellor indentifying a nominee

Question 29

Qualifying practitioner

Answer 29

Someone who has a senior courts qualification; is an advocate in Scotland or a solicitor entitled to appear in the Scottish Court of Sessions; or is a member of the Bar of Northern Ireland or a solicitor of the Court of Appeal of Northern Ireland.

Question 30

requirements to become a justice of the supreme court

Answer 30

candidates must have either held high judicial office for at least 2 years, or been a qualifying practitioner for a period of 15 years.

Question 31

Ad hoc committes vs Judicial appointments commission

Answer 31

Vacancies in the UK Supreme Court are filled by an ad hoc selection commission, as opposed to the Judicial Appointments Commission (JAC) which deals with all other appointments to the senior judiciary. According to the Constitutional Reform Act 2005, this five-member, ad hoc commission should comprise: the president of the Supreme Court; the deputy president of the Supreme Court; one member of the JAC; one member of the Judicial Appointments Board for Scotland; and one member of the Northern Ireland Judicial Appointments Commission.

Question 32

Appointment procedure and government ministers

Answer 32

Although the appointments procedure still involves a government minister, their input is greatly reduced as they are not permitted repeatedly to reject names put forward by the selection commission.

Question 33

Composition of the government

Answer 33

Although one would hardly expect a superior court such as the UK Supreme Court to be entirely socially representative of the broader population — due to the qualifications for office and the importance of the role — the membership of the court has left it open to accusations of elitism. Such concerns have not been dispelled by appointments to the court between 2009 and 2016

Question 34

president of the supreme court

Answer 34

Lord Reed - attended edinburgh, the oxford university

Question 35

deputy president

Answer 35

Lord Hodge - attended Cambridge

Question 36

other justices

Answer 36

• Lord Lloyd-Jones - attended Cambridge
• Lord Briggs of Westbourne - attended Oxford
• Lord Kitchin - attended Cambridge
• Lord Sales - attended Oxford and Cambridge
• Lord Hamblen of Kersey - attended Oxford
• Lord Leggatt - attended Cambridge
• Lord Burrows - attended Oxford
• Lord Stephens of Creevyloughgare - attended Manchester
• Lady Rose of Colmworth - attended Oxford and Cambridge
• Lord Richards of Camberwell - attended Cambridge

Question 37

Key doctrines and principles that underpin the work of the Supreme Court

Answer 37

• the rule of law
• Judicial independence and judicial neutrality

Question 38

The rule of law

Answer 38

The rule of law is a key doctrine of the UK constitution under which justice is guaranteed to all. A. V. Dicey saw the rule of law as one of the ‘twin pillars’ of the constitution, the other being parliamentary sovereignty. (*one seat vacant in October 2009)

Question 39

Three strands of the rule of law

Answer 39

• no one can be puniched without trial
• no one is above the law and are subject to the same justices
• The general principles of the constitution result from the judges’ decisions rather than from parliamentary statute.

Question 40

The general principles of the constitution (e.g. personal freedoms) result from the judges’ decisions rather than from parliamentary statute.

Answer 40

While the decisions of judges (i.e. case law or common law) certainly have a part to play in defining the UK’s constitutional arrangements, parliament remains sovereign and statute law reigns supreme. Any legal precedent can be overturned by the means of a simple Act of Parliament.

Question 41

No one is above the law and all are subject to the same justice.

Answer 41

Again, while this would appear to be a principle that would hold true in all liberal democracies, there have always been those who are effectively above the law in the UK, including the monarch, foreign ambassadors and MPs. In the case of the latter, a number of MPs even tried to use parliamentary privilege as a way of ending legal proceedings taken against them over their expenses during the 2009 expenses scandal.

Question 42

No one can be punished by trial

Answer 42

While this principle makes good sense in theory, it is not always maintained in practice. For example, terrorist suspects have been subject to a range of punishments without trial under measures passed since 2001, including indefinite detention, the imposition of control orders and the freezing of their assets.

Question 43

Judicial independence and judicial neutrality

Answer 43

The rule of law clearly demands that judges at all levels of the UK judiciary should operate with a high level of independence and dispense justice with a degree of neutrality. However, it is important to draw a clear distinction between judicial independence and judicial neutrality. The absence of judicial independence is a threat to judicial neutrality because the impartiality of judges is compromised if they are subject to external control. However, judicial independence does not guarantee judicial neutrality because judges may still allow their personal views to influence the way they administer justice.

Question 44

Judicial independence vs judicial neutrality

Answer 44

• Judicial independence:
  
  • Judicial independence is the principle that
    those in the judiciary should be free from
    political control.
  • Such independence allows judges to ‘do the
    right thing’ and apply justice properly,
    without fear of the consequences.
• Judicial neutrality:
  
  • Judicial neutrality is where judges operate
    impartially (i.e. without personal bias) in their
    administration of justice.
  • Judicial neutrality is an essential requirement
    of the rule of law.

Question 45

How is judicial independence maintained?

Answer 45

• Security of tenure’ enjoyed by judges.
• Guaranteed salaries paid from the
  Consolidated Fund.
• The offence of contempt of court.
• Growing separation of powers.
• Independent appointments system.
• Training and experience of senior judges.

Question 46

Security of tenure’ enjoyed by judges.

Answer 46

Judges are appointed for an open-ended term, limited only by the requirement that they must retire by the age of 75. This means that politicians cannot seek to bring influence to bear by threatening to sack or suspend them. Members of the senior judiciary can only be removed as a result of impeachment proceedings requiring a vote in both Houses of Parliament.

Question 47

Guaranteed salaries paid from the Consolidated Fund.

Answer 47

Judges’ salaries are classified as ‘standing services’ and are therefore paid automatically from the Consolidated Fund. This means that politicians are unable to manipulate judges’ salaries as a way of controlling them.

Question 48

The offence of contempt of court.

Answer 48

Under sub judice rules, the media, ministers and other individuals are prevented from speaking out publicly during legal proceedings. This requirement is designed to ensure that justice is administered fairly, without undue pressure being brought to bear by politicians or the public in general.

Question 49

Growing separation of powers.

Answer 49

The downgrading of the post of lord chancellor and the creation of a new UK Supreme Court enhanced the separation between the senior judiciary and the other branches of government. Prior to these changes, the most senior judges, the Law Lords, sat in the House of Lords and the lord chancellor held significant roles in all three branches of government: executive, legislature and judiciary.

Question 50

Independent appointments system.

Answer 50

The Constitutional Reform Act 2005 saw the creation of an independent Judicial Appointments Commission (JAC). This brought greater transparency to the process of judicial appointments and served to address concerns that the system in place previously had been open to political bias.

Question 51

Training and experience of senior judges.

Answer 51

Most senior judges have served an ‘apprenticeship’ as barristers and come to the bench having achieved a certain status within their chosen profession. It is argued that such individuals take considerable pride in their legal standing and are therefore unlikely to defer to politicians or public opinion, where this would be seen to compromise their judicial integrity.

Question 52

Has the UK judiciary become more politicised in recent years? YES

Answer 52

• The Human Rights Act 1998 has drawn senior judges into the political fray by requiring them to rule on the merit of an individual piece of statute law as opposed to its application.
• The Factortame case (1990) established the precedent that UK courts can suspend Acts of Parliament where they are thought to contradict EU law.
• The creation of the Supreme Court in 2009 and the physical relocation of those senior judges to Middlesex Guildhall has brought senior judges into the public arena and subjected them to greater scrutiny by the media.
• Politicians have broken with convention by publicly criticising rulings handed down by senior judges. ‘Brexit minister’ (Secretary of State for Exiting the European Union) David Davis, did this when he reacted to a November 2016 High Court ruling which stated that the government could not trigger Article 50 without parliamentary approval.

Question 53

Has the UK judiciary become more politicised in recent years? NO

Answer 53

• The appointments process for senior judges has been made more transparent and less open to accusations of political interference through the creation of the JAC and the separate Supreme Court appointment process.
• Although ‘politicisation’ is often associated with political interference and/or control, the UK senior judiciary has, in fact, become more independent in the wake of the Constitutional Reform Act 2005, such as through the downgrading of the role of lord chancellor.
• Increased conflict between judges and politicians is a positive thing because it shows that the courts are prepared to challenge the government when it appears to be encroaching upon our civil liberties.
• The fact that senior judges still benefit from security of tenure and guaranteed salaries helps to insulate them from political pressure.

Question 54

How is judicial neutrality guranteed?

Answer 54

In simple terms, of course, it is impossible to guarantee judicial neutrality; judges are human, after all, and they will inevitably bring some degree of personal bias to their work. However, the promise of a universal application of the law under the doctrine of the rule of law requires that such bias is not allowed to colour judicial decisions.

Question 55

There are four main ways in which judicial neutrality is achieved:

Answer 55

• The relative anonymity of senior judges.
• Restriction on political activity.
• Legal justifications of judgments.

Question 56

The relative anonymity of senior judges.

Answer 56

Judges have traditionally operated away from the public eye. Until recently, judges rarely spoke out publicly on issues of law or public policy, and senior judges are still expected to avoid being drawn into open defence of their rulings, or criticism of those in government.

Question 57

Restriction on political activity.

Answer 57

As with many senior civil servants, judges are not supposed to campaign on behalf of a political party or a pressure group. Although judges retain the right to vote, their political views or outlook should not become a matter of public record.

Question 58

Legal justifications of judgments.

Answer 58

Senior judges are generally expected to offer an explanation of how their decisions are rooted in law. This requirement that decisions be clearly rooted in the law makes it less likely that senior judges will be guided by personal bias. Note that in the case of the UK Supreme Court, decisions are published in full on the court’s official website, along with press summaries of significant cases.

Question 59

High-level training.

Answer 59

Judges are part of a highly trained profession, regulated by the Law Society. Senior judges have commonly served for many years as barristers before taking to the bench, and their elevation to the higher ranks of the judiciary would normally reflect a belief that they are able to put any personal bias they might hold to one side when administering justice. Although the security of tenure enjoyed by senior judges makes it difficult to remove those whose neutrality is open to question, additional guidance and training can be required in such cases, and individual judges might also be moved away from more serious cases while their performance is monitored.

Question 60

Threats to judcial neutrality

Answer 60

The main question mark over judicial neutrality comes from the narrow recruiting pool from which senior judges have traditionally been drawn, with most of those appointed to the higher tiers of the judiciary being privately schooled, Oxbridge-educated, white, middle-class men who are beyond middle age. How, it is argued, can judges be truly neutral when their own life-experiences are so very different from most of those who are brought before them? As we will see later in this chapter, the creation of the Judicial Appointments Commission (JAC) appears to have done little to address this problem, and the composition of the UK Supreme Court, although determined under entirely different procedures, is similarly unrepresentative.

Question 61

Critics on Judicial neutrality

Answer 61

Critics also point to the way in which senior judges have been drawn into the political fray in recent years, with the suggestion that the passage of measures such as the Human Rights Act (1998) has resulted in the politicisation of the judiciary. However, while some see this growing public profile and increased conflict between senior judges and politicians as a threat to judicial neutrality, it could just as easily be seen as evidence of growing independence and neutrality — not least because senior judges appear increasingly willing to take on the political establishment in defence of civil liberties.

Question 62

Politicisation

Answer 62

Where individuals or institutions traditionally seen as being above the political fray, are dragged into it. Some see the way in which UK judges were drawn into areas of political controversy in the wake of the Human Rights Act 1988 as evidence of politicisation.

Question 63

Common Law

Answer 63

The body of legal precedent resulting from the rulings of senior judges. Sometimes referred to as case law or judge- made law, it is an important source of the UK constitution.

Question 64

Judicial review

Answer 64

The process by which judges review the actions of public officials or public bodies in order to determine whether or not they have acted in a manner that is lawful.

Question 65

Ultra vires

Answer 65

From the Latin, meaning ‘beyond the authority’ or ‘beyond one’s powers’. The process of judicial review can be used to determine whether or not a minister or other government officer has acted ultra vires: that is, beyond the authority granted to them in law.

Question 66

US vs UK supreme court

Answer 66

While the US Supreme Court can declare Acts of Congress unconstitutional, thereby striking them down, the UK Supreme Court has no such power in respect of parliamentary statute. This is because statute law remains the supreme source of constitutional law in the UK. Despite this, the UK Supreme Court wields considerable influence through its use of judicial review.

Question 67

Importance of Judicial review

Answer 67

While it is helpful to have an awareness of the judiciary in its broader sense, the Supreme Court and the Courts of Appeals that operate directly below it are of most interest to students of politics. This is because it is these higher tiers of the judiciary that have the power to set legal precedent, establishing common law through their use of judicial review. In short, these higher courts clarify the meaning of the law as opposed to simply applying the letter of the law.

Question 68

The changing character of judicial review in the UK

Answer 68

• Judicial review often requires senior judges to clarify the legal meaning of a particular law or regulation. Judicial review may also involve reviewing appeal cases heard previously at lower (inferior) courts.
• As we have noted, the doctrine of parliamentary sovereignty and supremacy of statute law means that judicial review in the UK is generally seen as being less significant than in the USA, where the US Supreme Court can strike down pieces of regular statute that are judged to have violated the provisions of the US Constitution.

Question 69

UK context of Judicial review

Answer 69

the phrase ‘judicial review’ was once taken to mean little more than the courts assessing the actions of those in power to ensure that they had not acted beyond the authority given to them in law; so-called ultra vires cases.

Question 70

Although the ability to make ultra vires rulings is still an important weapon in the Supreme Court’s armoury, judicial review in the UK has grown significantly in both scope and scale due to two key developments:

Answer 70

• the growing importance of European Union law
• the elevated status given to the European Convention on Human Rights (ECHR) under the Human Rights Act 1998

Question 71

Factortame

Answer 71

A case in which the European Court of Justice (ECJ) established the precedent that UK courts can suspend UK statute law where it appears
to violate EU law, at least until the ECJ is able to make a final determination as to the legality of the statute in question. The case took its name from a Spanish-owned fishing company, Factortame Limited, which had challenged the legality of the Merchant Shipping Act 1988 under European law.

Question 72

European Union Law and the supreme court

Answer 72

Under the European Communities Act 1972, the UK incorporated the Treaty of Rome into UK law. The effect of this simple change was to give European laws precedence over conflicting UK statutes, whether past or present. For many years this simply meant that the UK government could be called to account at the European Court of Justice (ECJ). However, in the wake of the Factortame case (1990), UK courts have also been able to suspend UK statutes that appear to be in violation of EU law. This power will naturally disappear when the UK leaves the European Union in the wake of the Brexit vote.

Question 73

The UK Supreme Court hearing a case relating to EU Law

Answer 73

United States of America v Nolan (2015)
This case resulted from a claim against the US government under the Trade Union and Labour Relations Act 1992. Nolan, who had been employed by the US Army at a base in Hampshire, had argued that there should have been more consultation with workers’ representatives before making her redundant. The US government argued that the Secretary of State had acted ultra vires under the European Communities Act (1972), because the1995 regulations under which Nolan had made her original claim went beyond the basic rights given under EU Law. The Supreme Court found in Nolan’s favour, arguing that the Secretary of State had not exceeded his powers when issuing regulations in 1995.

Question 74

European Convention on Human Rights (ECHR) 1950

Answer 74

The ECHR was established by the Council of Europe, an intergovernmental body that
is separate from the European Union and not to be confused with the EU’s Council of Ministers or European Council. Alleged violations of the ECHR are investigated by the European Commission on Human Rights and tried in the European Court of Human Rights, based in Strasbourg. Again these bodies are not to be confused with the EU’s European Commission and European Court of Justice.

Question 75

The human rights and the supreme court

Answer 75

Before 1998, cases brought under the European Convention on Human Rights (ECHR) were heard at the European Court of Human Rights (ECtHR) in Strasbourg. The Human Rights Act (HRA) 1998 came into force in October 2000. It incorporated most of the articles of the ECHR into UK law, thereby allowing citizens to pursue cases under the ECHR through UK courts as opposed to having to go directly to the ECtHR in Strasbourg.

Question 76

Human rights articles

Answer 76

• Article 1 commits all signatories to protecting the rights included in the European Convention on Human Rights (ECHR).
• Article 2 protects the right to life.
• Article 3 prohibits torture and degrading or inhuman treatment.
• Article 4 outlaws slavery and involuntary servitude.
• Article 5 secures liberty and security of the individual against arbitrary arrest and imprisonment.
• Article 6 guarantees a fair trial.
• Article 7 prevents legislation that criminalises acts retrospectively.
• Article 8 promotes respect for the individual’s private and family life.
• Article 9 protects the freedom of thought, conscience and religion.
• Article 10 enshrines the right to freedom of expression.
• Article 11 protects the rights of association and
  assembly: for example, the right to form a trade union.
• Article 12 protects the right of men and women to marry and start a family.
• Article 13 allows for the redress of grievances where convention rights have been violated.
• Article 14 prohibits discrimination in the application of rights guaranteed in the ECHR.
• Article 15 allows for suspension or ‘derogation’ of some of the rights guaranteed by the ECHR in times of national emergency.
• Article 16 permits restrictions on the political rights of foreign nationals.
• Article 17 prevents rights protected in the ECHR from being used to limit other convention rights.
• Article 18 holds that the ‘get-out clauses’ included in some articles of the ECHR should not be abused as a way of limiting those rights protected in more general terms.

Question 77

Human rights and ECHR council of europe

Answer 77

As the Human Rights Act is based on the Council of Europe’s ECHR, rather than on EU law, it is not superior to parliamentary statute. Under the HRA, the Supreme Court is only able to issue a declaration of incompatibility where a parliamentary statute appears to violate
the rights guaranteed — and parliament is not obliged to amend the offending statute. That said, the HRA (like the ECHR) has a ‘persuasive authority’ that has enhanced the protection of individual rights in the UK. The following case study illustrates both the extent of the ultra vires power and its limitations, while also demonstrating the extent of the judiciary’s power under the European Convention on Human Rights (and the Human Rights Act that incorporates that convention into UK law).

Question 78

Ultra vires and the ECHR

Answer 78

R. (Reilly) v Secretary of State for Work and Pensions (2016)
-Reilly argued that, in requiring her to work for a private company in order to receive her benefit payments, the Department of Work and Pensions (DWP) had infringed the protection against slavery provided in Article 4 of the European Convention on Human Rights (ECHR).
On appeal in 2013, the Supreme Court concluded that while the DWP had not infringed the ECHR in introducing ‘welfare to work’, the scheme was unlawful because the department had operated ultra vires, i.e. beyond the authority given to it by parliament.

Question 79

Derogation

Answer 79

A process by which a country is exempted, perhaps temporarily, from observing
a law or regulation it has previously agreed to abide by. Under Article 15 of the European Convention on Human Rights (ECHR), national governments are permitted to derogate some of the convention’s articles in times of national crisis.

Question 80

The extent of the Supreme Court’s power under the HRA

Answer 80

As we have seen, the HRA does not have the same legal status as EU law or the US Bill of Rights, with the latter being both entrenched and superior to regular statute. As a regular piece of statute, the HRA can be amended, suspended (derogated) — in its entirety or in part — or simply repealed, like any Act.

Question 81

Declaration of incompatibility

Answer 81

While the courts cannot strike down parliamentary statute under the HRA, they can make a declaration of incompatibility and invite parliament to reconsider the offending statute. Furthermore, where statute law is silent or unclear, the courts can make even greater use of the HRA by using its provision to establish legal precedent in common law. In addition, we should remember that the HRA also has a hidden influence through the process by which draft legislation is now examined by parliament’s Joint Committee on Human Rights in order to ensure that it is compatible with the HRA.

Question 82

The Supreme Court and the Human Rights Act

Answer 82

R. (Tigere) v Secretary of State for Business, Innovation and Skills (2015) Beaurish Tigere, who had arrived in the UK from Zambia aged 6 and subsequently completed her A-levels, was not eligible for a student loan for her undergraduate degree because she did not have indefinite leave to remain in the UK and would not be able to apply to the UK Border Agency for this until 2018. In 2015, the UK Supreme Court accepted her appeal on the grounds that the negative impact on the appellant’s rights under Article 2 of the ECHR (the right to education) and also Article 14 (prohibiting discrimination) could not be justified.

Question 83

Has the UK judiciary had a greater impact on the work of the executive and parliament in recent years? NO

Answer 83

• The physical relocation of the UK’s top court to its new accommodation in Middlesex Guildhall in 2009, though highly symbolic, did little to change the legal– constitutional relationship between the judiciary, the executive and the legislature (parliament).
• Although the Human Rights Act gives judges the right to issue a ‘declaration of incompatibility’ where an Act of Parliament appears to have violated the ECHR, parliament is under no legal obligation to fall into line with court rulings.
• While senior judges have the ability to rule that ministers in the executive have acted beyond their statutory authority (i.e. ultra vires), those very ministers can use the executive’s control of parliament to pass retrospective legislation which legitimises their earlier actions.
• Although the scope and scale of EU law has grown significantly since Maastricht, many areas of public policy remain largely in the hands of parliament, thus limiting the scope of judicial action.
• Any move to review the status of the Human Rights Act and/or complete Brexit would massively reduce the ability of the Supreme Court to have a significant impact on the operation of the executive or parliament.

Question 84

Has the UK judiciary had a greater impact on the work of the executive and parliament in recent years? YES

Answer 84

• In diminishing the role of lord chancellor and removing the UK’s most senior judges from the House of Lords, the Constitutional Reform Act 2005 inevitably enhanced judicial independence, making it more likely that judges would feel able to hold the executive and parliament to account.
• By allowing cases under the European Court of Human Rights (ECHR) to be heard in UK courts, the Human Rights Act 1998 allowed the UK’s most senior judges to directly question Acts of Parliament — as well as the actions of those working in the executive.
• The precedent established under the Factortame case (1990) allows senior judges to suspend the actions of both parliament and the executive, where either branch appears to have breached EU law.
• The extension of EU law in the wake of the Maastricht Treaty (1992) brought senior UK judges into conflict with both the executive and parliament across a far wider range of policy areas than had previously been the case.
• This growth in judicial action has had a further, indirect, impact. Those in the executive and in parliament now look to head off potential conflict in the courts by ensuring that all legislation complies with the HRA and EU law.

Question 85

The overall impact of the supreme court

Answer 85

The UK does not have an entrenched, codified and supreme constitutional document — a set of ‘fundamental laws’ akin to the US Constitution. As we have seen, therefore, it is impossible for the UK Supreme Court to strike down Acts of Parliament or move against the government in the style in which its US counterpart can tear up Acts of Congress and force the president to back down.

Question 86

The UK Supreme Court’s power is therefore limited to the four main areas:

Answer 86

• revisiting and reviewing earlier legal precedent established under common law and case law (judge-made law)
• making ultra vires rulings where the court judges that public bodies have acted beyond their statutory authority
• addressing disputes arising under EU law
• issuing ‘declarations of incompatibility’ under the Human Rights Act 19

Question 87

Public profile of the supreme court

Answer 87

• While the court has certainly developed a more public profile since its creation in 2009, Lord Philips’ prediction that the change would essentially be one of ‘form rather than of substance’ has largely been borne out. In an article marking the first 5 years of the court, Lord Neuberger identified ‘key cases’ that clearly do not represent a significant departure from what the Law Lords might have done previously.
• In the years since Lord Neuberger selected his ‘top five’, the kinds of rulings that the court has handed down continue to be similar in character to those that the Law Lords might have issued in the years prior to the establishment of the Supreme Court. This was certainly true in the case of R v Jogee (2016), as we have seen, where the precedent of joint enterprise was reviewed and refined.

Question 88

Quasi-legislative

Answer 88

Where the impact of differences in the Supreme Court’s interpretations over time can appear tantamount to a legislative change, even though parliament has made no change to statute law.

Question 89

Is the supreme court too powerful?

Answer 89

Such a question is generally rooted in the notion that there has been a blurring of the traditional distinction between those politicians who make the law and the judges who should simply apply it: that senior judges have become little more than ‘politicians in robes’. Such a distinction will clearly always be flawed as a result of the role
that senior judges play in interpreting and clarifying the law when resolving disputes that arise under it. The Supreme Court’s ability to establish precedent through common law could therefore be seen as a quasi-legislative power.

Question 90

The unelected nature of the Supreme Court

Answer 90

• Criticism of the Supreme Court on the grounds that it is too powerful for an entirely unelected body is clearly misguided.
• As we have already established, the UK Supreme Court has no more power than the Appellate Committee of the House of Lords that it replaced back in 2009.
• We should remember that it is rare for those in senior judicial positions worldwide to be elected to office.
• Judicial independence requires that senior judges are free to interpret the law and dispense justice fairly, without fear of being arbitrarily removed from office through the ballot box (or by any other means).
• From the perspective of the UK Supreme Court, it is clear that judicial independence demands a degree of unaccountability. It is an essential feature of democracy that we must at times place our trust in those who are not directly accountable to the citizenry at large.

Question 91

The German sociologist Max Weber (1864– 1920) identified three sources of authority:

Answer 91

• traditional authority based on established traditions and customs
• charismatic authority based on the characteristics of leaders
• legal–rational authority granted by a formal process, such as an election

Question 92

The growing authority of the Supreme COurt

Answer 92

Although the UK Supreme Court has no more formal power than that held previously by the Appellate Committee of the House of Lords, and could not really be said to ‘tick’ any of Weber’s boxes, it could be argued that the new court nonetheless possesses greater authority than the body it replaced. This is because the very nature of its institution and its operation has changed the way in which it is perceived as an institution, thus transforming the way in which other institutions, the media and the wider public have come to view and accept its rulings.

Question 93

Factors which have enhanced its authority include:

Answer 93

• a more independent and less opaque appointments process than that which applied to the Law Lords
• a clearer separation of powers accompanied by a clear physical separation between legislature and judiciary
• an ongoing process of ‘demystification’ — with public visits, an intelligible website and enhanced coverage in the mainstream media

Question 94

The potential impact of Brexit on the jurisdiction, power and authority of the UK Supreme Court

Answer 94

The UK’s departure from the European Union will inevitably have an impact on the status, power and authority of the Supreme Court. It is important, however, to distinguish between those institutions and processes which are part of the EU, and those which are not.

Question 95

Brexit and the Supreme Court’s power under the
Human Rights Act 1998

Answer 95

Those who argued in favour of the UK leaving the EU have often also been the fiercest critics of the European Court of Human Rights (ECtHR), the body established in 1959 to hear cases arising under the 1950 European Convention on Human Rights (ECHR). That convention, incorporated into British law under the Human Rights Act (HRA) 1998, is problematic for those who see it as a threat to the independence and sovereignty of the Westminster Parliament. Irrespective of the merits or demerits of that view, the reality is that the ECHR was established not by the European Union, but by the Council of Europe — an entirely separate organisation, founded in 1949 by Britain and nine other European states

Question 96

overall Brexit impact

Answer 96

Thus leaving the EU would not, in itself, remove our obligations under the ECHR, any more than repealing the HRA would. The only way to remove ourselves from the jurisdiction of the ECtHR would be to withdraw from the ECHR itself — an almost unthinkable act, given that all European states (with the exception of the Vatican City, Belarus and Kazakhstan) are current signatories.

Question 97

ECHR vs ECJ

Answer 97

• European court of Human rights:
  
  • It was established by the Council of Europe.
  • It hears cases brought under the European
    Convention on Human Rights.
  • It is based in Strasbourg but is not an EU
    institution
    -European court of justice:
  • It is the ‘supreme court’ of the European
    Union.
  • It hears cases arising under EU law.
  • It is based in Luxembourg.

Question 98

Brexit and the Supreme Court’s power under
EU law

Answer 98

While leaving the EU will have little or no direct impact on the status of the HRA, the ECHR or the ECtHR, Brexit would involve withdrawing from the Treaty of Rome, meaning that EU law would no longer take precedence over UK law and the European Court of Justice (ECJ) would no longer have jurisdiction over the UK. A decision to withdraw from the ECHR as well as the EU (removing the UK from the jurisdictions of both the ECtHR and the ECJ) would obviously leave the UK Supreme Court in a greatly enhanced position.

Question 99

Brexit and the Supreme Court’s power under
EU law impact on the work of the UK Supreme Court in two ways because:

Answer 99

• A proportion of its current caseload relates to EU law.
• The removal of a court that is, in theory, superior to the Supreme Court in some aspects of law would enhance the Supreme Court’s status and authority.

Question 100

UK/US comparasions

Answer 100

• Under the US Constitution, individual US states are free to organise their own state-level judiciary largely as they see fit. As a result, UK/US comparisons tend to focus on the higher levels of the US federal judiciary in the USA and the senior judiciary in the UK.
• The US judiciary, like the UK judiciary, is broadly hierarchical in structure. The US Supreme Court sits above 13 US Federal Circuit Courts of Appeal, with US District Courts, the US Claims Court and the US Court of International Trade at the lowest tier.
• Where as the UK Supreme Court comprises 12 members (the president of the court, the deputy president of the court and ten justices of the court), the US Supreme Court has numbered 9 justices since 1869 (with one chief justice and eight associate justices).
• US courts, like their UK counter parts ,are expected to operate with high levels of judicial independence and judicial neutrality. Judges on both sides of the Atlantic must rely on other state institutions to enforce their judgments.