4.1 The Supreme Court and the legislative and policy-making processes

Question 1

When was the Supreme Court opened in the UK? How was is established?

Answer 1

October 2009. It was established by the Constitutional Reform Act of 2005 but did not begin work until the premises chosen for it had been prepare.

Question 2

Why was the Supreme Court opened?

Answer 2

It was designed to end the fusion of powers at the highest level of the UK judiciary. Previously the most senior judgers - the ‘law lords’ - had sat as members of the House of Lords, and were known as the Appellate Committee of the Lords.
- It was to create greater transparency, and to bring the UK into line with most other Western countries.

Question 3

Other than the Supreme Court, what other changes did the Constitutional Reform Act of 2005 make?

Answer 3

It changed the role of the lord chancellor, whose historic office had combined three functions:
- Cabinet minister, who supervised the legal system
- Chairman of settings of the House of Lords
- Head of the judiciary, who appointed other judges
The Act removed the last two of these responsibilities from the lord chancellor

Question 4

Who now chairs the Lords after the Constitutional Reform Act of 2005?

Answer 4

The lord speaker, who is chosen by their fellow peers.

Question 5

How are judges selected now?

Answer 5

By an independent Judicial Appointments Commission.

- Applicants must have held high judicial office for at least 2 years

Question 6

The UK does not have a unified…

Answer 6

legal system.

- There are three systems: one for England Wales, one for Scotland and one for NI

Question 7

The Supreme Court is the only…

Answer 7

UK-wide court.

Question 8

What does the Supreme Court act as?

Answer 8

A final court of appeal for rulings made by lower courts and the final court of appeal for criminal cases in England, Wales and Northern Ireland, and for civil cases across the whole of the UK.

Question 9

Where else, other than legal cases, do the Supreme Court hear appeals on?

Answer 9

Arguable points of law where matters of wider public and constitutional importance are involved.

Question 10

Until the UK left the EU, the Supreme Court had a responsibility to…

Answer 10

interpret law passed by the EU.

Question 11

Where do the Supreme Court make rulings, relating to devolution?

Answer 11

On cases where the devolved authorities in the UK may not have acted within their powers.

Question 12

How many members does the Supreme Court consist of?

Answer 12

12 - although cases are always heard by odd number of justices so that a majority verdict can be reached. In most cases five or possibly nine justices take part; reflecting the importance of the issue.

Question 13

How many justices took part in the 2016-17 review of the High Court ruling that parliament rather than the government should initiate the UK’s exit from the European Union.

Answer 13

11.

Question 14

The most senior figure of the SC is designated…

Answer 14

as the president.

Question 15

Who is the current president of the Supreme Court?

Answer 15

Lord Reed.

Question 16

What has the Supreme Court been criticised for?

Answer 16

Having almost all white male justices - The Times used the phrase ‘pale, male and stale’.

Question 17

How do judges become Supreme Court judges?

Answer 17

• SC judges will usually have to have served as a senior judge for two years, or been a qualified lawyer for at least 15 years.
• The original members were the former law lords, who moved from the House of Lords to their new premises
• When there are vacancies, nominations are made by an independent five-member Select Commission
• The lord chancellor either rejects the person put forward, although they cannot reject names repeatedly

Question 18

What 2 principles do the judicial system in the UK rest on?

Answer 18

Judicial Neutrality.

Judicial Independence.

Question 19

Define judicial neutrality

Answer 19

The principle that judges should not be influenced by their personal political opinions and should remain outside of party politics.

Question 20

How does the code of conduct of the Supreme Court safeguard impartiality?

Answer 20

1) Conflicts of interest - judges must refuse to sit in a case involving a family member, friend or professional associate.
2) Public activities - judges may write and give lectures as part of their function of educating the public but they must avoid political activity.

Additionally, the court’s website carries full details of its decisions, and the reasoning behind them, allowing for greater public scrutiny.

Question 21

Why is the narrowness of the court’s composition in terms of gender, social and educational background a real concern?

Answer 21

Reinforces a long-standing anxiety about the senior judiciary as a whole - that it contains a disproportionate number of white, privately educated males.

Question 22

Define judicial independence.

Answer 22

The principle that judges should not be influenced by other branches of government, particularly the executive.

Question 23

Why is judicial independence vital?

Answer 23

Because the court be called on to administer justice in cases where there is a conflict between the state and an individual citizen.

People must know that they will receive impartial justice and judges need to be confident that they can make a decision without fear that their career prospects will suffer.

Question 24

What built-in guarantees of independence does the UK judiciary have?

Answer 24

Terms of employment - judges can’t be removed from office unless they break the law
- Security of tenure - only limit on judges’ service is an official retirement age of 70

Pay - judges’ salaries are paid automatically from an independent budget known as the Consolidated fund, without possibility of manipulation by ministers

Appointment - the Judicial Appointments Commission and the Selection Commission for the Supreme Court are transparent in their procedure and free from political intervention

Also - Supreme Court physically separate from parliament

Question 25

What concerns about judicial independence were raised in 2011?

Answer 25

By its first president, Lord Phillips, on the subject of funding - in response to the spending cuts imposed on the court system as part of the coalition government’s strategy to eliminate the budget deficit

Phillips argued that the independence of the Court was at risk unless it could be allocated pre-set, ring-fenced funding

Question 26

How did the coalition government react to the court’s concerns about independence?

Answer 26

The justice secretary at the time, Kenneth Clarke, dismissed the argument and insisted that the Supreme Court was independent of political interference and that the government accepted it judgements, even those that went against it and that the court couldn’t be uniquely permitted to set its own budget.

Question 27

What influence has the Supreme Court had on parliament?

Answer 27

One of its most important roles - interpreting the 1998 Human Rights Act - if it believes that an existing piece of UK legislation is in conflict with the ECHR, it can issue a ‘declaration of incompatibility’.

There is an exception that parliament will modify the law to bring it into line with the Convention - doctrine of parliamentary sovereignty means that the court doesn’t have power to strike down laws.

Question 28

Define judicial review.

Answer 28

The power of the judiciary to review, and sometimes reverse, actions by other branches of government that breach the law, or that are incompatible with the Human Rights Act.

Question 29

How can judicial review be used?

Answer 29

The court can inquire whether ministers have followed correct procedures in the way that they implemented legislation - it can examine the actions of public bodies to investigate whether they have acted ultra vires.

Question 30

Define ultra vires.

Answer 30

Literally ‘beyond the powers’ in Latin. An action that is taken without legal authority.

Question 31

What are some examples of the Supreme Court’s rulings working in favour of the government and not on other occasions?

Answer 31

The right of sex-offenders to appeal against registration for life, April 2010 - against government

The Al Rawi case and secret hearings - against government

The case of Private Jason Smith - in favour of government

The HS2 rail link - in favour of government

Question 32

Explain the right of sex-offenders to appeal against registration for life case , April 2010 case

Answer 32

Government position - individuals who had committed serious sexual offences in England and Wales must register with the police for life after being released from prison.

Supreme Court - ruled that it breached their human rights - should have the right to appeal.

Question 33

Explain the Al Rawi case and secret hearings, July 2011

Answer 33

Brought in by former inmates of the prison at Guantanamo Bay - claimed that UK security services had contributed to their detention and mistreatment.

Security chiefs, supported by the Government, argued that in interests of national security, they must be allowed to give evidence in secret.

Supreme Court rejected this argument - on grounds that it breached one of the principles of a fair trial.

Question 34

Explain the case of Private Jason Smith, June 2010

Answer 34

Private Smith - UK serviceman who died of heartstroke on campaign in Iraq in 2003.

Family brought case against MOD - argued that authorities should’ve safeguarded him.

High Court ruled in their favour - overruled by Supreme Court - held that the jurisdiction of the Human Rights Act did not extend to troops in combat situations.

Question 35

Explain the HS2 rail link case, January 2014

Answer 35

Campaigners against government’s planned London to Birmingham high speed rail link requested judicial review to investigate whether it complied with EU environmental directives.

Supreme Court unanimously dismissed appeal on grounds that parliament had not yet reached a final decision on the scheme.

Question 36

Explain the Brexit Supreme Court case in 2017

Answer 36

Most important constitutional case to date, on whether the government needed the authority of parliament to trigger the process of leaving the EU.

Brought by businesswoman, Gina Miller - argued that the PM couldn’t take such as step simply by using prerogative powers.

Supreme Court upheld an earlier ruling in Miller’s favour by the High Court, on grounds that EU membership had introduced statutory rights for UK citizens, which only parliament could remove.

Supporters of Brexit outraged - claiming that justices had set themselves agains the democratic will of the people.

However, the court was only reasserting the constitutional principles governing how Brexit should be carried out.