chapter 8 Flashcards
Context: What is the role of the UK Judiciary? What is are judicial precedents, justicies, and the judiciary?
-Interpret laws & set judicial precedents. Conduct judicial reviews. Hold public inquiries. Sentence & dispense justice.
-Judicial Precedents are new interpretations of laws, that become the basis for future cases.
-Justices are judges of the Supreme Court
-The Judiciary is the collective word for judges
Context: What had previously been the UK’s Highest Court?
-It was situated in the HoL, and made up of12 ‘Lords of Appeal in Ordinary’ or ‘Law Lords’. They were expected to be neutral crossbenchers, but were free to take part in the business of Lords (so they were not independent).
-They were headed by the Lord Chancellor, who was head of the UK judicial system, the speaker of the HoL, AND a cabinet minister. (super not independent)
-Most cases would be heard by only 5 law lords.
-The PM had the final say in each judge’s appointment.
Context: When was the Constitutional Reform Act introduced & what did it do?
-2005.
-Replaced the Lord Chancellor with the Lord Chief Justice as head of the UK judicial system. The role of Lord Chancellor was fused with justice sec, and ceased to sit in Lords.
-Supreme Court was established (becoming active in 2009), headed by the President of the Supreme Court (currently Lord Reed of Allermuir, who replaced Lady Hale).
-When there is a vacancy in the SC, a special selection commission is established. This consists of senior law officers from the whole of the UK. They then recommend a candidate to the Lord Chancellor.
-This Act reaffirmed that justice could be removed by votes in both chambers.
Role: Why might the SC hear a case?
-May be an important judicial review, concerning an important body & the legal powers they possess (like the gov, NHS, a newspaper, or a schools).
-May have implications for other bodies & citizens, so might create an important precedent.
-Case involves an important interpretation of the law that lower courts have been unable to make, or have interpreted differently.
-The case has a great deal of public interest.
-A key issue of human right is at stake.
-To ensure that the rule of law is applied.
Role: What types of cases & issues do the SC review? Who applies for judicial review & what are their aims? Why would gov want to restrict judicial review cases?
-Judicial Reviews serve 2 democratic objectives: ensuring gov does not overstep its powers (ultra vires) and asserting the rights of citizens.
-Citizens who feel that they have been mistreated by local courts & want to question their decisions.
-JRs challenge their authority & can limit their power.
Role: Why have the number of judicial reviews increased?
-The introduction of the HRA boosted the role of the SC, as it meant that courts could review actions by government that might contravene the ECHR.
-Since devolution, many disputes have risen about the relationship between Westminster & devloved bodies, and want powers each has.
-The number of applications for JRs across all courts peaked in 2013, when 15,000 applications were made. Most, though, were refused. In 2013, the gov restricted the cases that could apply for judicial review, and raised court costs.
Role: Give some examples of how judicial review has been applied in the UK.
-Ultra vires: R vs PM (2019). Where Johnson’s poroguing of Parliament was deemed unlawful.
-Reviewing the legality of Parliament Legislation. Steinfeld & Keiden v Sec of State for International Development (2018). Ruled that the Civil Partnership Act (2004) was discriminatory as it prevented heterosexual couples from getting a civil partnership.
-Establishing precedent: An NHS Trust vs Y (2018). Ruled that legal permission was no longer needed to withdraw treatment from patients in a permanent vegetative state, where doctors & relatives agreed.
Independence: How is the independece of the judiciary ensured?
-Security of tenure. Judges cannot be removed unless a vote is approved by both Commons & Lords.
-Sub judice. Government cannot interfere with the result of any case, or even comment in public. This removes any possible political pressure.
-Appointments made are fairly independent of government. Whilst the Lord Chancellor must approve, they can only refuse on the groups that the candidate is not suitably qualified
-Judicial Pay is determined by an independet body, so there is no reliance on parliament.
Neutrality: How is the neutrality of the judiciary ensured?
-Decisions must be made on the basis of law, and they must explain how they have reached a decision based on this.
-Cases are heard by 5 judges to ensure that no singular prejudice influences the final decision (peer review).
-No serving justice may join a political party or other group that may have a conflict of interest. They are, however, still allowed to vote.
-Senior judges must have had a lengthy career as a lawyer & be highly trained.
SC & Parliament: What is the effect of Parliamentary sovereignty on the SC?
-SC is subordinate to Parliament, so they are not in a position to defy the will of Parliament.
-Any law that Parliament passes, irrespective of the judges’ personal views, must be enforced by the judiciary.
SC & Parliament: What power does Parliament have over judicial rulings?
-If they disapprove of a ruling, they may simply pass a new statute, or amend an old one, to correct eh judges’ ruling.
-This happened in 2010, when the SC ruled that the gov did not have the power to freeze the bank assits of terrorist suspects. A year later, a statute was passed (Terrorist Freezing-Asset Act), changing this.
-The SC had no power to go against this.
SC & Parliament: What is the possible effect of a British Bill of Rights on the SC?
-If the HRA was appealed and replaced with a BBR, the powers of the judiciary could be weakened & swung back to Parliament.
-However, it would be very difficult to remove the provisions of the ECHR from the jurisdiction of the UK Courts. It would still be part of the constituion, but you would have to be heard by the European Court of HRs, making it inaccessible for most.
-The BBR could aso be amended by any ordinary statute, reducing th power of the SC in protecting HRs.
SC & Parliament: Why are sentencing issues so controversial?
-Sentencing can be a very political issue, as growing crime rates have forced the government to take greater responsibility and to reflect the growing public demand for longer sentences.
-This has therefore reduced the independence of the judiciary, which has been further worsened by the introduction of minimum sentences for certain & repeat offences.
SC & Parliament: Why was the 2016 Gina Miller case so important?
-In 2016, Miller took the government to court. She argued that David Davis did not have the prerogative power to trigger Article 50 of the EU, which would start the process of the UK’s departure. The SC ruled in Miller’s favour.
-This was influential as it clearly asserted that the judiciary has the power to determine the limits of government’s prerogative powers.
-Suggests that the rule of law is above political considerations.
-Demonstrates the limited power of referendums
-Shows that the rule of law is superior to political considerations
SC & Parliament: How might the background of judges influence the SC’s decisions?
-There is a lack of diversity on the SC, which suggests that there is limited plurality of thought & that they do not necessarilly reflect the UK properly. The idea that the SC are ‘male, pale, and stale’ has become common. There is, however, an age limit of 70.
-This could also mean that they are not completely neutral (though no human is).
-Their education does make them well experienced & informed, which makes them suitable for their role.
