3.Judiciary Flashcards
Makeup of the Supreme Court - Not too bad
-Lack of diversity throughout judicial system
-Only a 1/3 of senior judicial positions are held by women
-Only a 5% of senior judicial positions are held by BAME
- highly experienced and qualified usually coming from the Court of Appeal
Makeup of the Supreme Court - Bad
-Only 1 judge is a woman, the other 11 are men
-No ethnic diversity with all judges being white despite only 82% of the UK being white
-Lack of a diversity of background with only 1 judge graduating from a non-Oxbridge university
The Supreme Court’s influence on the executive and Parliament - The Supreme Court interpreting the law and setting judicial precedent
Regina vs Jogee 2016
Jogee was convicted of murder but did not directly kill instead encouraged the killing. He was setenced under ‘Joint enterprise’-
The Appeal Court turned down Jogee’s appeal as it was a justified precedent so the conviction was safe but after appealing to the Supreme Court the precedent was overturned as he was not closely enough involved with the killing - instead found guilty of manslaughter
This opened the door to many similar appeals by convicted murderers in joint enterprise cases
Judges in similar cases will now have to be more careful in deciding whether an accomplice should be found guilty of a crime if someone else actually committed it
The Supreme Court has effectively rewritten the law on ‘joint enterprise’
However, the Supreme Court is not influential as it cannot initiate cases only determine cases which are brought to it. Also, they are still bound by what the law states despite interpreting it
The Supreme Court’s influence on the executive and Parliament - Judicial Review of whether a public body including the government has acted beyond it’s authority
Are influencial- Forced public bodies to reconsider their policy decisions e.g. Samuels v Birmingham City Council 2019 the UKSC forced a public body to reconsider its decision to declare a single mother ‘intentionally homeless’ because she could not afford the rent (ultra vires)
Not influential - However, of all judicial review cases, only 36% of cases resulted in a ruling against a public body. The number of judicial review cases has fallen from 15,000 in 2014 to 5,000 annually
The Supreme Court’s influence on the executive and Parliament - Judiciary interpretation of the law against Parliament’s wishes
(did not agree with the power Parliament had confirmed with the Attorney General)
- Argued that the UKSC is overstepping its powers
- The Black spider memos of the Prince of Wales which the courts ruled could be made public, the attorney general overrode the decision, the UKSC was asked to adjudicate in 2014 and went against the attorney general which was criticized as the decision was made because the judges did not approve of the power that Parliament had conferred on ministers which suggests that the judiciary encroached into the realm of politics and undermined it’s own neutrality
The Supreme Court’s influence on the executive and Parliament - UKSC supporting Parliament’s wishes over the executive
-R Miller V Secretary of State for Exiting the European Union 2016 (Miller 1) - The UKSC ruled that the British Government may not initiate a withdrawal from the European Union without an Act of Parliament
The Supreme Court’s influence on the executive and Parliament - Judicial Review of government acts
The Supreme Court ruled that the government did not have the power to freeze the bank assets of suspected terrorists through the Terrorism Freezing Act 2010 and despite Brown being enraged he had to accept the judgement.
However, a new statute was passed later the same year the Terrorist Asset-Freezing Act 2010 granting such power to the government so the will of Parliament ultimately prevailed.
The Supreme Court could do nothing about it.
The Supreme Court’s influence - parliamentary priviledge
Legally immunity if actions/speech is involved in legislative duty
R v Chaytor and others (2010) 3 MPs claimed they could not be tried in the Crown Court on the charge of false accounting of their parliamentary expenses. This was because these actions had taken place as part of their parliamentary duties and so were covered
The Supreme Court ruled that parliamentary privilege did not extend to criminal offences which take place within Westminster with all 3 receiving prison sentences for false accounting.
The Supreme Court’s influence on the executive and Parliament - establishing where sovereignty is located within the UK
-R Miller V Secretary of State for Exiting the European Union 2016 (Miller 1) - Argued that all 3 devolved governments had to consent to the invocation of Article 50 to leave the EU but the UKSC unanimously rejected this, clearly defining that the UK government does not need the consent of the devolved administrations when it comes to foreign affairs under the Sewel Convention
-However, any declaration of incompatibility with the ECHR undermines the sovereignty of the UK
The Supreme Court’s influence on the executive and Parliament - Rulings under the Human Rights Act
- HRA 1998
- UKSC has the ability to issue a declaration of incompatibility when it believes government policy is not in accordance with the provisions of the HRA e.g. due to Article 8 (right to family life) in 2013 a Ugandan man was unable to be deported due to having fathered children in the UK despite attending a terrorist training camp
- However, a declaration of incompatibility does no force the government to act, and can be ignored
- The powers of the UKSC are far more limited that the SCOTUS, which has the power to make law through it’s interpretation of the US Constitution
European Convention of Human Rights
-It hears cases brought under the ECHR and is not an EU institution
Between 2010 and 2015 there were only 3 declarations of incompatibility
In each case, the government asked Parliament to amend the existing law to remove the conflict with the ECHR.
Despite the small number, the principle is an important one – what it means is that those who draft legislation and those who scrutinise it in Parliament must take account of the ECHR.
The mere threat of a declaration by judges is enough to influence lawmaking.
It is also a vital protection of human rights in the UK.
John Hirst 2004
Rule of Law
Some people have immunity such as foreign diplomats that have diplomatic immunity and are thus above the law
- e.g. Harry Dunn who was killed in 2019 by a US diplomat’s wife who then claimed diplomatic immunity
Constitutional Reform Act
- 2005
- Replaces the Law Lords with the UKSC
- End of Lord Chancellor’s role in all 3 branches of government
- Creates the Judicial Appointments Commission for the UKSC which still includes the Lord Chancellor (a minister) but their influence is greatly reduced compared to informal ‘secret soundings’
Previous Law Lords failures
- All the Law Lords were not only members of the judiciary, but also the legislature as they sat in House of Lords
- The most senior Law Lord, the Lord Chancellor, was a member of the House of Lords, and a member of the executive Government
- ‘Secret soundings’, previously, the Lord Chancellor and Civil Servants of the Executive would informally select candidates, with the Lord Chancellor consulting existing senior judges
Previous Law Lords Successes
-There is no evidence that the previous Law Lords shied away from making similar rulings to the UKSC e.g. in M v Home Office 1993 the Law Lords held the Home Secretary Kenneth Baker in contempt of court for failing to comply with a court order in an asylum case
