3.1.1.4 the judiciary

Question 1

The supreme courts powers

Answer 1

• hear appeals
• review the action of other public bodies
• allows it to establish new rules or ‘precedents’ that affect not only the case in question

Question 2

Judiciary

Answer 2

• 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.

Question 3

Lowest level of court

Answer 3

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

Question 4

Supreme court

Answer 4

Appeals from the Court of Appeal and in exceptional circumstances from the High Court (also Scotland and Northern Ireland).

Question 5

level of courts

Answer 5

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

Question 6

Constitutional reform act 2005

Answer 6

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).

Question 7

Why was the supreme court established?

Answer 7

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 8

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

Answer 8

• separation of powers
• Law Lords, were appointed - confusion over the work of the Law Lords

Question 9

How are supreme court justices appointed before 2005

Answer 9

• made by the monarch on the advice of the prime minister and the lord chancellor.
• lacked transparency, undermined the separation of powers

Question 10

system of appoint

Answer 10

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 submit a report to the lord chancellor indentifying a nominee

Question 11

requirements to become a justice of the supreme court

Answer 11

• held high judicial office for at least 2 years, or been a qualifying practitioner for a period of 15 years.

Question 12

Appointment procedure and government ministers

Answer 12

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 13

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

Answer 13

• the rule of law
• Judicial independence and judicial neutrality

Question 14

Three strands of the rule of law

Answer 14

• 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 15

The general principles of the constitution resulted from the judges’ decisions rather than from parliamentary statute.

Answer 15

parliament remains sovereign and statute law reigns supreme. Any legal precedent can be overturned by the means of a simple Act of Parliament.

Question 16

How is judicial independence maintained?

Answer 16

• 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 17

Benefits of an Independent appointments system.

Answer 17

• This brought greater transparency to the process of judicial appointments
• served to address concerns that the system in place previously had been open to political bias.

Question 18

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

Answer 18

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

Question 19

Threats to judcial neutrality

Answer 19

• 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.

Question 20

Critics on Judicial neutrality

Answer 20

• the suggestion that the passage of measures such as the Human Rights Act (1998) has resulted in the politicisation of the judiciary.

Question 21

Politicisation

Answer 21

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 22

Common Law

Answer 22

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 23

Judicial review

Answer 23

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 24

Ultra vires

Answer 24

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 25

Importance of Judicial review

Answer 25

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.

Question 26

UK context of Judicial review

Answer 26

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 27

judicial review in the UK has grown significantly in both scope and scale due to two key developments:

Answer 27

• 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 28

Derogation

Answer 28

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 29

Declaration of incompatibility

Answer 29

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.

Question 30

The overall impact of the supreme court

Answer 30

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 31

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

Answer 31

• 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 1998

Question 32

Quasi-legislative

Answer 32

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 33

Factors which have enhanced its authority include:

Answer 33

• 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 34

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

Answer 34

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 35

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

Answer 35

• 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.