Chapter 7- The Supreme Court

Question 1

What act established the Supreme Court

Answer 1

Constitutional Reform Act

Question 2

What were some concerns about the previous judicial system

Answer 2

1. Concerns over the incomplete separation of powers in the U.K. political system
2. opaque system in which senior judges (law lords were appointed)
3. confusion over the work of the law lords

Question 3

Example over worries over the incomplete separation of powers in the U.K.

Answer 3

The position of the Lord Chancellor and presence of the law lords in the upper chamber of legislature

Question 4

Why were people confused Ofer the work of the Law Lords

Answer 4

Failure to understand the distinction between the House of Lords legislative and judicial functions

Question 5

What are 2 functions of the Supreme Court

Answer 5

1. To act as the final court of appeal in the U.K.

2. To clarify the meaning of law, by hearing appeals in cases where there is uncertainty

Question 6

How did judges used to be appointed to the Supreme Court

Answer 6

Made by the monarch on the advice of the PM and Lord Chancellor

The Lord Chancellor would also consult existing senior judges through a system known as ‘secret soundings’

Question 7

What problems did people have with the old appointment system

Answer 7

Lacked transparency, undermined the separation of powers, and resulted in a lack of diversity in senior judges

Question 8

What is the rule of law

Answer 8

Key doctrine of the U.K under which Justice is guaranteed to all.

Question 9

What are three strand air the rule of law

Answer 9

No one can be punished without trial

No one is above the law and everyone is subject to the same justice

The general principles of the constitution result from judges decisions rather than from parliamentary statute

Question 10

Why do some people question whether ‘no one can be punished without trial’

Answer 10

Terrorist suspects have been subject to a range of punishments without trial under measures passed since 2001

In December 2001, the UK Parliament approved the Anti-Terrorism, Crime and Security Act, which allows for the detention without trial of foreigners suspected of terrorism.

Question 11

Why do some people question whether ‘ no one is above the law and everyone is subject to the same justice’

Answer 11

Always those who are above the law: monarch, foreign ambassadors and MPs.

A number of MPs even tried to use their parliamentary privilege as a way of ending legal proceedings taken against them over their expenses during the 2009 expenses scandal.

Question 12

How is the absence of judicial independence a threat to judicial neutrality

Answer 12

the impartiality of judges is comprised is they are subject to external control

Question 13

What is judicial independence

Answer 13

The principle that those in the judiciary should be free from external control

Question 14

Why is judicial independence important

Answer 14

Allows judges to do what they perceive to be ‘the right thing’ without career consequences

Question 15

What is judicial neutrality

Answer 15

Judges operate impartially in their administration of justice

Question 16

One way that judicial independence is maintained

Answer 16

Security if tenure enjoyed by judges: judges are appointed for an open-ended term, limited only be the requirement that they retire by 75.

Therefore politicians cannot use their influence to threaten to sack or suspend them.

Question 17

Another way that judicial independence is maintained

Answer 17

Independent appointment system: the (independent) Judicial Appointment commission (JCA) has brought greater transparency to the process of judicial appointments and addressed the concerns that previous appointments were open to political bias

Question 18

One more way that judicial independence is maintained

Answer 18

The offence of contempt of court: under ‘sub judice’ rules, the media, ministers and other individuals are prevented from peaking publicly about an ongoing case

Ensures that justice is being administered fairly without pressure put in them by media or politicians

Question 19

One way that judicial neutrality is maintained

Answer 19

High level training: highly trained profession, regulated by the Law Society. Today, SC justices must have either held high judicial office for 2 years or been a qualifying practitioner for 15 years.

Elevation to higher ranks reflects a be,if that they are able to put aside any personal bias in their administration of justice

Question 20

Another way that judicial neutrality is maintained

Answer 20

Legal justification of judgements:
Judges are expected to offer an explanation of how their decisions are rooted in law. This means that judges cannot be guided by personal bias. SC decisions are highly publicised

Question 21

What is one threat to judicial neutrality

Answer 21

Senior judges traditionally drawn from a narrow circle of privately schooled, oxbridge educated, white men.

How can judges truly be neutral when their own experiences are completely different from those in front of them

Question 22

What law has enhanced the independence of the judiciary

Answer 22

The HRA

Question 23

Why do people say that rulings under the HRA have given the judiciary greater independence

Answer 23

The Supreme Court feels emboldened to disagree with the executive on gov. Policy

Question 24

Example of this (HRA GOV POLICY)

Answer 24

Under article 8 of the HRA (right to a family life), judges have a made a series of rulings that overseas nationals should be allowed to stay in the U.K. because they have families resident in the country

Question 25

What else has given the judiciary greater independence

Answer 25

The establishment of the Supreme Court itself

Question 26

Why do people say this (est of SC)

Answer 26

Justices have been emboldened, leading to more rulings against gov policy

Question 27

An example of this (EST. Of SC giving judges more ind.)

Answer 27

The SC’s 2016 ruling that Chris Grayling has exceeded his powers in ruling that legal aid claimants needed to pass a residency test before qualifying for financial support

Question 28

However, why is this questionable (est. of SC giving judiciary greater ind)

Answer 28

No evidence that the Law Lords shied away from making similar rulings

In 91, the Law Lords found Kenneth baker in contempt of court for failing to comply with a court order in an asylum case.

Question 29

How else has the establishment of the Supreme Court enhanced the independence of the judiciary

Answer 29

It has led to an increased case of judicial review

Question 30

What is judicial review

Answer 30

The process by which judges review the actions of public bodies/ officials to determine whether or not they have acted in a manner which is lawful

Question 31

How has an increased use of judicial review strengthened the independence of the judiciary

Answer 31

Judgements have forced many public bodies to think about their policy decisions

Question 32

An example of judicial review

Answer 32

June 2019, Samuels vs Birmingham city council- Supreme Court ordered the city council to reconsider its decision to declare a single-mother ‘intentionally homeless’ because she could not afford the rent

Question 33

How has judicial review not enhanced independence though

Answer 33

Of all judicial review cases, just 36% resulted in a ruling against a public body. Moreover, following a change in gov policy
, the number of judicial review cases has actually been falling, from a High of 15,000 in 2014 to 5,000 annually since then.

Question 34

How else has the HRA enhanced judicial independence

Answer 34

The Supreme Court can issue a ‘declaration of incompatibility’ when it believes that gov policy is not in accordance with the provisions of the HRA.

Question 35

An example (dec. of incompatibility)

Answer 35

2018, the SC ruled that Northern Ireland’s abortion law was incompatible in cases of rape, incest or fatal fetal abnormality

Question 36

How has a dec. of incompatibility not strengthened independence

Answer 36

A declaration of incompatibility does not force gov. To act. It is a suggestion that the gov. Reconsiders the existing law, and can be ignored.

Question 37

Why do some say that the HRA has made judges too powerful

Answer 37

The rulings based on the HRA could be seen to be undermining parliamentary sovereignty. Parliament is the Supreme-law making body in the land, so why are we allowing unelected judges to have the final say.

Question 38

Why is the judiciary disagreeing with the executive a good thing

Answer 38

It demonstrates that there are checks and balances in the system, thereby upholding the doctrine of the separation of powers and not just paying lip service to it.

Question 39

Do British judges constantly disagree with parliament?

Answer 39

Nope. British judges have generally accepted the gov’s arguments about the overriding importance of national security and have avoided comment on ECHR decisions which have criticised the U.K. gov’s refusal to act on the declaration of incompatibility issued by the SC, such as on prisoner voting rights

Question 40

Why is judicial review important

Answer 40

The Supreme Court and the Court of Appeal have the power to set legal precedent, establishing common law through their use of judicial review.

Question 41

How has the nature of judicial review changed?

Answer 41

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

However today have grown in scope and scale because of growing importance of EU and elevated status given to the ECHR under the HRA