4.1a Supreme Court Flashcards
6
Describe the role of the judiciary
- Hear criminal/civil disputes
- Interpret law - when meaning/application unclear
- Establish case law - judges decide how law is applied in other cases (judicial precedent)
- Make law by declaring common law - set judicial precedent
- Judicial review
- Hold public inquiries - recommend action to govt and Parliament
When judges declare common law, they set a…
judiical precedent
2
What is a judicial precedent?
- Legal principle that when a court makes intepretation of law in specific case, should be applied in subsequent cases
- Only a higher court can overturn judicial precedent
3
Describe the features of the Supreme Court
- Final court of appeal for all civil cases in UK and all criminal cases in UK (bar Scotland)
- Concentrates on cases of greatest public and constitutional interest
- Hears arguable points of law - interpret statue law where not clear (common law)
4
Describe the role of the Supreme Court
- Check govt through Judicial review
- Determine whtehr public body has acted ‘ultra vires’ (beyond its authority)
- Determine where sovereignty lies in the UK
- Set judicial precedents
5
Describe the composition of the Supreme Court
- 12 Justices in total
- 1 Pres, 1 Deputy Pres + 10 other justices
- Majority of court cases have 5 judges sitting
- In matters of huge constitutional significance, up to 11 justices will sit
- Current President - Lord Reed
Will always be odd number of justices (to avoid ties)
4
Describe the appointment process to the Supreme Court
- Vacancy must occur
- Appt based on experience and merit
- Independent panel set up for each vacancy by unbiased and transparent Judiciary Appointments Committee (JAC)
- Lord Chancellor uses royal preogative to approve nomination or ask panel to reconsider (matter of rubber staming)
4
Describe the selection committee for SC appointments
- 5 person panel
- Lord President of SC, a senior judge and 3 JAC representatives (from England and Wales, Scotland, NI)
- at least 2 members of this panel must be non-lawyers
- Selection committee must have at least 2 years judicial experience or 15 years experience practicising laws
5
Describe judicial neutrality
- Principle that judges should be neutral and apolitical (cannot belong to political party)
- Should not show bias to any sections of society
- Judgement based purely on principles of law - no prejucies
- Neutrality will uphold rule of law
- ‘Security of Tenure’
3
Describe how SC judges are apolitical
- Barrister/solictor may be member of party or pursue politicla career
- Judge must abandon all political ambitions and associations once elected
- Do not intefere in policy-making processes
4
Describe ‘security of tenure’
- Effectively appt for life (until age 70 or 75 depending on when appt)
- Cannot be dismissed on basis of their judgements
- Cannot be dismissed by govt
- Can’t remove judge unless consent given by both chambers (e.g. for breaching neutrality)
1
Describe judicial independence
Principle that judiciary should be free of political inteference and criticism, esp from executive
4
Why is judicial independence important?
- Uphold rule of law without external influence
- Hear matters of political importance where they must give neutral judgement
- Protect rights of citizens without fear of retribution from govt
- Check on executive power (judicial review)
4
How is judicial independence upheld?
- Security of tenure
- Salaries set by independent SSRB (Senior Salary Review Bodies) - cannot be manipulated by govt
- Appt by independent commission
- Duty of govt to protect SC judges from external criticism, esp in media
Criticism after Article 50 decision in 2019
3
Describe judicial review
- Judges conduct review into government ministers to deem whether actions are ‘compatible’
- Investigate whether government action/decisions are ‘ultra vires’ in SC case
- Often pressure groups bring cases due to their cost
2
Describe the impact of judicial review
- Ministers generally respect judicial review and make changes to law to satisfy SC ruling
- Exert moral complusion on government to act
2
How often does government win judicial review case?
- Government regularly wins
- e.g. in series of 2013 anti-HS2 judicial reviews, govt won 9/10
3
How did the coalition government aim to reduce judicial review?
- 2015
- Aimed to reduce what it deemed to be ‘unmeritious’ claims
- e.g. barred oral hearings for claims judges deemed to lack merit
4
Describe the positives in Supreme Court membership diversity
- ‘Secret soundings’ removed in 2005
- Transparency of court cases (televised) would clearly show any prejudice in media
- Lord Hale served as President of Supreme Court (2017-20) during constitutionally important brexit years
- Nov 2023, Lady Simler, a Jew, became a justice
3
Describe the removal of ‘secret soundings’
- Prior to 2005, Lord Chancellor advised PM through ‘secret soundings’ of senior judges
- Arguably led to perpetuation of socially elite judiciary membership
- Judiciary Appointments Committee now selects SC judges on basis of merit, with diversity accounted for
3
Describe the lack of diversity in the Supreme Court
- Education - 11/12 justices studied at Oxbridge
- Gender - only 2/12 justices are women
- Ethnicity - have never been any black justices
2
How does a lack of diveristy negatively affect SC rulings?
- Rarefied experiences make them less suited to interpreting contemporary law that reflects whole of society
- Radamacher v Granatino (2010)
2
What are limits to the argument that a lack of negatively diveristy affects the SC
- SC membership based on merit
- JAC must ensure that judges do not show a bias to any sections of society
2
Describe ‘sub justice’
- Applies to any member of government or Parliament
- expressing opinion on case while under consideration (‘sub justice’) is said to be in contempt of court
3
Do justice secretaries need past legal experience?
- No (e.g. Truss) but they often do
- Truss claimed to have not understood independent nomination process upon taking office - dismissed JAC as beaurucratic quango
- 4/11 Justice Secs since 2010 held little prior legal experience
3
Describe media criticism of the SC
- Eurosceptics attacked in-built liberal tendencies of SC during Brexit years
- Heightened by Miller rulings
- Left-wing media attack elite membership
3
Describe ‘enemies of the people’
- Daily Mail ran 2016 headline describing 3 High Court justices that ruled that Parliament would have to approve triggering Article 50 as ‘enemies of the people’
- Justice Sec Truss criticsed for not sufficiently defending judges’ independence
- James Slack, headline editor, served as No10 Director of Comms (2021)
2
Evaluate the view that the Supreme Court operates with sufficient judicial independence
Combine with neutrality card
- ‘Sub justice’ and ‘security of tenure’ restrict ministerial criticism vs growing willingness for ministers to criticise inceasingly active SC (e.g. Miller cases)
- Constitutional Reform Act 2005 led to separation of powers vs Government retains some powers in selection process
2
Evaluate the view that the Supreme Court operates with sufficient judicial neutrality
- SC increasingly diverse vs SC lacks diversity
- Practice political neutrality vs Media criticism from both political wings
2
Describe an example of ‘ultra vires’
- Chris Grayling (Justice Sec) amended Legal Aid Act using secondary legilsaiton to introduce ‘residence test’ in 2012
- SC ruled Justice Sec acted ‘ultra vires’
4
How have 2005 reforms limited the ability to deliver effective government?
- Greater judicial independence has led to increased use of judicial review
- Made ministers fearful of litigation
- Slowed down decision-making
- added costs to public projects (e.g. HS2)
3
Evaluate the view that the SC exerts significant influence on the executive
- Can effectively quash government actions by declaring ‘ultra vires’ vs Executive can circumvent rulings
- Declare incompatibility on legislation effectively originating from executive vs Can only interpret cases brought before it - focus is on upholding rule of law (UNISON 2017)
- Unaccountable yet have huge impact on policy-making vs judicial restraint - ruling limited to constitutional issues, not political ones (e.g. Budgets)
The increasing judicial independence since 2005 has (…) the number of judicial reviews
increased
3
Evaluate the view that the Supreme Court limits parliamentary soveriegnty
- Challenge decisions of elected Parliament vs rebalanced power towards Parliament through judicial review (ultra vires)
- Declarations of incomptability suggest higher form of judicial law vs upholds rule of law as legislated by Parliament over creeping Executive (UNISON)
- Not neutral/independent compared with acountable Parliament vs increaisngly neutral/independent since 2005
