4.1 The Supreme Court

Question 1

the role and composition of the supreme court

composition of the court: lower courts and the resolutions of higher coourts

Answer 1

• the judicary represents the courts and the judges
• lower courts resolve cases
• the resolutions from higher courts such as the high court, the court of appeal and the Supreme Court set legal precedents and can be referred to in later cases

Question 2

the role and composition of the supreme court

what do the judges decide? what is this type of law called? what does it provide the basis of?

Answer 2

• the meaning of the law
• parliament enacts it, but the meaning and relevance have to be worked out by the judges.
• this is known as case law or judge-made law and provides the basis for common law

Question 3

the role and composition of the supreme court

What was the house of lords like before the Constitutional Reform Act 2005? what did it change?

Answer 3

• 12 law lords delivered judgements in the Appellate committee
• but this breached separation of powers
• Blair passed the Constitutional Reform Act 2005

Question 4

the role and composition of the supreme court

how is the court different now? what does it look like?

Answer 4

• 12 most senior judges in the UK sit in the Supreme Court and are called the justices of the supreme court.
• the work of the new supreme court is more open to public scrutiny

Question 5

the role and composition of the supreme court

What is the Supreme Court in the UK

what type of court

Answer 5

the final court of appeal for all criminal cases in England, Wales, and Northern Ireland
(in scotland, the High Court of Justicary fulfils this role most of the time)

Question 6

the role and composition of the supreme court

Judicial review

Answer 6

the supreme court acts as the final court of appeal when there is a judicial review of how the government has acted

Question 7

the role and composition of the supreme court

supreme court and devolved bodies?

Answer 7

• it also has the authority to determine whether an issue ought to be under the jurisdicition of the British government or a devolved body

Question 8

the role and composition of the supreme court

what is the approval process for senior judges in the UK?

Answer 8

• membership is determined by a 5 member selection commission made up of the most senior judges in the UK
• their nominations are passed for approval to the justice secretary (who can reject)
• the PM asks the monarch to make the appointment

Question 9

the role and composition of the supreme court

what does the rule of law depend on?

Answer 9

• seperation of powers
• judges cannot be influenced by the government
• judges are expected to be neutral, so should never be influenced by social or political prejudice

Question 10

In what ways can the supreme court claim to be indepedent and neutral?

space?

Answer 10

• physical separation from parliament

number 1

Question 11

In what ways can the supreme court claim to be indepedent and neutral?

political ambitions?

number 2

Answer 11

• once appointed a judge, they must abandon any political ambitions and cannot join a party

Question 12

In what ways can the supreme court claim to be indepedent and neutral?

salaries?

number 3

Answer 12

• salaries are determined by the senior salaries review body, not decided by parliament

Question 13

In what ways can the supreme court claim to be indepedent and neutral?

removal?

number 4

Answer 13

• Act of Settlement 1701: to remove a judge, a resolution must be passed through both houses. The government cannot remove them alone.

Question 14

In what ways can the supreme court claim to be indepedent and neutral?

Constitutional Reform Act 2005

AC, SS

number 5

Answer 14

• removed law lords from the appelatte committee so seperated the court from the leigslature
• also removed ‘secret soundings’ as the judges used to be secretly decided by the Lord Chancellor and the PM

Question 15

In what ways can the supreme court claim to be indepedent and neutral?

5 person committee?

number 6

Answer 15

• 5 person committee decides appointments
• the lord president, a senior judge, and with represenatitves of the judicial appointments commission from England, Wales, Scotland, and Northern Ireland.

Question 16

In what ways can the supreme court claim to be indepedent and neutral?

media?

number 7

Answer 16

• any prejudice will be quickly publicised in the media due tho the public nature of court cases
• full proceedings can be photographed and live streamed

Question 17

In what ways can the supreme court claim to be indepedent and neutral?

parliaments opinion? (x)

Answer 17

when a case is being heard its ‘subjudice’ meaning parliament cannot express any opinion, which would breach the separation of powers.

Question 18

what are the criticisms of independence and neutrality?

background of the judges?

Answer 18

• the members are generally from such an elite background. This has led to claims they tend to favour the establishment
• Eg. 1977 John Griffith wrote the politics of the judiciary that socially and politically conservative judges always favour the status quo
• this means decisions the court makes are unlikely to reflect how the law impacts modern society
• most have been privately educated, and are men

Question 19

what are the criticisms of independence and neutrality?

only female judge

Answer 19

Lady Rose 2022

Question 20

what are the criticisms of independence and neutrality?

constitutional reform act 2005 criticism: lord chancellor and the justice secretary?

Answer 20

• merged the positions
• the justice secretary has no need for a legal background, but the selection committee for new justices must pass their reccommendations through the justice secretary. They can also ask for more information or reject a candidate.

Question 21

what are the criticisms of independence and neutrality?

government cases?

Answer 21

• critics argue with cases concerning the government, the court risks being pulled into major political disputes, potentially compromising neutrality
• Eg. Lizz Truss failed to defend judges when they were being vilified for ‘frustrating’ brexit, despite their legal obligation to determine the legality of government decisions

Question 22

does the supreme court limit the executive and parliament?

What can the supreme court judges refer to?

what is the disadvantage of this?

Answer 22

• ECHR through the HRA
• but, there is no higher constitutional law like the USA has.

Question 23

does the supreme court limit the executive and parliament?

2021 justice secretary Dominic Raab BOR?

Answer 23

• the HRA is not higher law because it was enacted by Parliament
• 2021 Dominic Raab announced plans to modify the reach of the HRA with a British Bill of Rights

Question 24

does the supreme court limit the executive and parliament?

difference between the ECHR and the ECJ?

Answer 24

• European Court of Justice no longer has jurisdiction over the UK
• we are still a member of the European Court of Human Rights

Question 25

# does the supreme court limit the executive and parliament? functions of the supreme court | 4 main ones

Answer 25

- **ultra vires;** deciding whether or not a public body has acted beyond its authority - establishing **where soveriengty is located** within the UK - **declaring when a government has acted in defiance of the HRA** - determining the **meaning** of the law.

Question 26

# does the supreme court limit the executive and parliament? so what does judicial review mean for the supreme court

Answer 26

- deciding whehter the actions of the government are in accordance with the law - cannot strike down parliamentary stattute because parliametn is sovereign

Question 27

# does the supreme court limit the executive and parliament? claims of politicisation of the court vs critics of this view

Answer 27

- critics argue an appointed body should not make judgements on what the government can or cannot do. Since many issues the supreme corut has to decide are partisan, the court can be claimed to be politicised - BUT: the supreme court possesses ultimate authority, even when judgements have seemd to be in opposition to the government, its only fulfilling its legal role.

Question 28

# does the supreme court limit the executive and parliament? how does the court safeguard limited government and liberal democracy

Answer 28

- by judging the governmnets actions

Question 29

# examples of ultra vires *R Miller v. Secretary of State for Exiting the European Union* | gina miller 1 ## Footnote what happened?

Answer 29

- government believed they could begin the process of leaving teh EU through use of royal perogative - **24 jan 2017** Supreme Court 8-3 upheld a high court decsiion that they could not do this - parliament took the UK into the EU, so parliament should be responsible to remove it.

Question 30

# does the supreme court limit the executive and parliament? *R (Miller) v The Prime Minister and Cherry v Advocate General for Scotland* | gina miller 2 ## Footnote what happened?

Answer 30

- August **2019** Johnson announced he decided to prorogue parliament for 5 weeks that autumn. The length of time led to accusations that the PM wanted to reduce opposition to his EU withdrawals - Gina Miller and the SNP MP Joanna Cherry brought 2 cases against the PM alleging the government seeked to limit parliaments right to hold the government to account - Miller lost in the high court - In Scotland, Cherrys case was upehld - Both cases appealed to the Supreme Court. **24** September 11-1 decision found the PM acted illegally

Question 31

# Human rights cases ***HJ and HT v. Home Secretary*** 2010

Answer 31

-2 men from Iran and Cameroon claimed asylum in the UK because they were gay and would be persecuted in their home country - Home Office refused, because they could be hiding their sexuality - Lord Hope decided against this.

Question 32

# Human rights cases ***Al Rawi and others v. The Security Service and others*** 2011

Answer 32

- former Guantanamo bay detainnees claimed british security services were in part responsible for their ill treatment and imprisonment - governmetn said the evidence of the heads of security couldnt be given publicly in case itt breached national security - court decided in favour of the detainees

Question 33

# Human rights cases ***R (on the application of UNISON v. Lord Chancellor*** 2017

Answer 33

- trade union UNISON declared the governmetns introduction of employment tribunal fees was unlawful - the court agreed they risked denying justice to those on low incomes, so were discriminatory

Question 34

# Human rights cases ***AM (Zimbabwe) v. Secretary of State for the Home Department*** 2020

Answer 34

- supreme court blocked attempts by the Home Office to deport an individual who ahd been convicted of several serious offences back to zimbabwe - this wsa because he had HIV and would unlikely recieve treatment in Zimbabwe - this highlights the ongoing tension between collective and individual rights

Question 35

# Human rights cases **Shamima Begum** 2011

Answer 35

- Begum travelled to Syria with 2 other girls so she could join the Islamic state - **2019** Home secretary Sajid Javid removed her british citizenship on the grounds that she was a threat to national security - **2020** court of appeal ruled Begum would be allowed to return to the UK so she could appeal - the supreme court (then) lord preseident Lord Reed found in favour of the homse scretary

Question 36

# determining the meaning of the law ***R v. Jogee*** 2016

Answer 36

- supreme court overturned 'joint enterprise' which named those who incited murder to be convictedi n the same way as the murderer. - the Supreme Court ruled there had to be an 'intent to kill' shown if members of a group were all to be held guilty

Question 37

# determining the meaning of the law ***P v. Chesire West and Chesire Council*** 2014

Answer 37

- 'p' was a man with Downs syndrome and cerebral palsy placed in social services, who limited his freedom as part of his care - court ruled in favour of P - Lady Hale in her judgement said *'a gilded cage is still a cage'*

Question 38

# the supreme court and parliamentary soverignty incompatability and the Echr ## Footnote -

Answer 38

- PARLIAMENt SHOULD legislate in accordance with the ECHR as the HRA states - if this isnt possible, the court can issue a statement of 'incompatability' which will put significant pressure on the government to amend the law. - Parliament is sovereign though, so if parliament decided to make it stand, the law w would stand

Question 39

# the supreme court and parliamentary soverignty how does this demonstrate the limits of the HRA?

Answer 39

- since it is not higher law - the court cannot use it to strike down legislation - If the Supreme Court stated the governmetn has acted beyond its authority (ultra vires), parliament could just legislate to give it these powers

Question 40

# the belmarsh case **2004** what happened?

Answer 40

- Blair used the Anti Terrorism Crime and Security act **2001** to hold *foreign* terrorist suspects indefinitely without trial - the law lords ruled this was discriminatory since they were being treated differently to british terrorist suspects. - the detainees were released - but the Prevention of Terrorism Act **2005** allowed parliament to monitor the detainees closely

Question 41

# Is the supreme court influential? yes

Answer 41

- final court of appeal - justices are the most senior judges in the UK. Their interpretation of the law is final - statement of incompatability puts pressure on the government - supreme court can declare when a body has acted illegally beyond its authority (ultra vires)

Question 42

# is the supreme court influential? no

Answer 42

- parliament is sovereign. The supreme court cannot strike down an act of parliament - the suprem court cannot initiate cases. it determines cases that are broguht to it - governemtn could ignore a declaration of incompatability - the court interprets the meaning of the law, it is also bound by what the law states - the supreme court can quash decisions, but parliament could then legislate to give the body legla powers it did not have before