judiciary Flashcards
what are the roles of the supreme court
-the uks final court of appeal
-appeals on cases of public significance
-defend rights and liberties of citizens
-interpret laws
-make common laws
how does the supreme court defend rights and liberties
-use the HRA 1998
-porotect EU laws
-judicial review
which act established the supreme court
2005 constitutional reform act
how does judicial review influence govt
can use it to overturn secondary legislation and declare laws as llegal, or incompatible with the HRA
ultra vires
when a individual acts beyond their powers
example of declration of incompatibility
Civil Partnership Act did not comply with ECHR as gay couples are allowed to marry or become civil partners but straight couples are not (June 2018)
how many judges make up the SC
12
what are the two key principles
independence and neutrality
who are they appointed by
JAC Judicial Appointments Commission
example of case heard by supreme court
2016-17, Gina Miller
,argued that the Prime Minister did not have the right to trigger Article 50 (the formal notice of Britain’s exit from the EU)
without the consultation of Parliament.
The Court found in Miller’s favour, and Parliament voted to trigger Article 50 in 2017.
judicial neautrality is sustained by
absence of any form of partisanship or political influence
judges can also not sit in any hearings regarding family members
rarely speak out to the public
base all decisions on the law
criticism of neautrality
all come from narow backgrounds so argued to have conservative bias
only two are not oxbridge educated
judicial independence
this is the principle that the actions and decisions of judges should not be influenced by pressure from other branches of government
how is judicial independence maintained
appointed by independent commision
security of tenure
payed independently not by government
physically seperate from govt and legislaturere
how is judicial independence maintained
appointed by independent commision
cant be sacked unless break the law
payed independently not by government
physically seperate from govt and legislaturere
how is judicial independence maintained
appointed by independent commision
cant be sacked unless break the law
payed independently not by government
physically seperate from govt and legislaturere
how are they appointed
JAC nominates justices which are appointed or rejected by Lord Chancellor
the appoitnmemtn is then confirmed by the monarch
Lee vs Ashers Bakery
company refused same sex marriage themed cake
case taken to SCUK and was found in favour of the bakery (same sex marriage was illegal in Ireland in 2014 - 2020 was legalised)
taken to ECHR and dismissed.
impact on govt
if finds govt action or bill conflicts with human rights will declare a declaration of incompatibility
the govt is expected to follow this but does not have to
E.G continued to deny the prisoners right to vote after the court ruled against it in 2005
how does tyranny of the majority limit SC
soverignty allows them to overrule court decisions and pass legislation
impact on legislature
independent physically (sep of powers) since 2009 so less direct influence
factor tame allows it to suspend statute law if it does not comply with EU law (pre-BREXIT?)
parliament is sovereign so can repeal/amend HRA 1998 if it wants to e.g conservative bill of rights
courts judicial review of the miller case strengthened parliament
three impacts of the HRA
seeking justice in a British court
rights must be respected by public bodies
new laws are compatible with conventional rights
how does HRA threaten power of justices
not entrenched/ can be repealed
not higher law
parliamentary sovereignty
how has HRA made UKSC more powerful than law lords
it is difficult for govt to go against rulings
declaration of incompatibility
3 ways judiciary can expertise influence over govt
1- declaration of incompatibility with the HRA/ judicial review
Tigere v Sec of State for Business, Innov and Skills 2015
but HRA not entrenched so parl can overrule this and pass new leg/ ignore HRA - Illegal Migration Bill 2023
2-declare govt minister ultra vires
Reilly v Sec of state for work and pensions 2016
however govt decision what to do after
3-conduct a judicial review
SC clarifies and interprets the law - porogration of parliament 2019
govt called a general election
tigere v sec of bus 2015
non uk born student denied access of student loan breaching her right to education
Reilly v sec of state for pensions 2016
not paying JSA to claimants who had not sufficiently participated in back to work scheme was deemed legally invalid and Sec of State had breached powers
progoration of parliament 2019
UKSC declared that the prerogative power of parliament to prorogue was justiciable and the ongoing power go prorogation was unlawful and void
impact of BREXIT on UKSC
no longer UK law overruled by EU law
no higher court above SC
if UK withdraw from ECHR it would make UKSC more vulnerable to govt control
what enhances authority of uKSC
more independent and less opaque appointment than Law Lords
clearer separation of powers - seperate physical building
enhanced media coverage and access to information
security of tenure
judges can’t be removed unless the break the law
immune from any legal action arising from any comments they make
only limit on their service is an official retirement of 70
pay
paid automatically from an independent budget known as the consolidation funds
they are paid well which means they are less pressured to make decisions from financial pressure (approx £250k)
sub juice rules
prevent MPs, ministers, and the. media from public speaking on ongoing legal procedures intended to prevent any media influence
Supreme Court and HRA
ensure all bills comply with HRA
though ECHR and HRA are not legally superior to statute laws, the SC can declare bills incompatible to change them
arguments the SC has limited influence over exec/parl in relation to HRA
can declare incompatibility but have no legal power to compel parl to change the offending AoP
the HRA could be repealed with one AoP
example of SC having no power to compel parl to change an offending AoP (illegal immigration bill)
introduced by home sec braverman with a section 19 note stating that the bill was incompatible with HRA but govt wanted to proceed nonetheless
argue how SC has significant power over exec/parl in relation to HRA
parliament has a joint committee on human rights to scrutinise bills and ensure they are compatible therefor demonstrating a persuasive influence
example of persuasive infleunce of HRA over parl (A v Sec of state for home department)
part of the anti crime and terrorism act 2001 was declared incompatible by permitting the detention of suspected terrorists in a way that discriminated the grounds of immigration and nationality status
the prevention of terrorism act 2005 was amended as a result
2022 second referendum on Scottish independence case
unmodified nature of constitution makes it unclear as to who can legislate for an independence referendum
the Supreme Court ruled that the Scotland act 1998 does not give Scottish parliament to unilaterally legislate for an indepence referendum, it is instead a reserved power for uk parl
arguments for the case that the SC has become politicised
power to interpret the law can be seen as a quasi-legislative power
concern exacerbated due to the unelected and unrepresentative nature of the Supreme Court
the court judges merit of legislation rather than simply ensuring it is implemented
recent high profile cases - not as anonymous potentially due to SCA 05 means SC more visible as separate from parliament
decisions of article 50 and prorogation cases interfered too much and limited the actions of a democratically elected government
