Judiciary

Question 1

What was the appointments process for senior judges below Supreme Court level like?

Answer 1

• made by monarch on advice of PM/Lord Chancellor (through secret soundings)
• criticisms that it resulted in narrow social circle; Lord Chancellor had too much power; also lack of transparency/compromised separation of powers.

Question 2

What did New Labour do to reform the process?

Answer 2

• Constitutional Reform Act 2005 - reduced power of Lord Chancellor/placed power with new, independent JAC; enhanced separation of powers.
• Didn’t do much in terms of increasing diversity; still overwhelmingly white/male; 2/5 of ad hoc committee sit on Supreme Court; Lord Chancellor (Justice Secretary still confirmed by executive).

Question 3

What is the appointment of Supreme Court justices like?

Answer 3

• CRA got rid of Law Lords in HoL; founding justices of Supreme Court.
• experience highly valued
• ad-hoc, 5 member commission appoints justices; recommends to Lord Chancellor who chooses what to do with it.
• more transparency; meritocratic rather than hereditary; reduced gov influence; separation of powers - physically moved away.

Question 4

Composition of Supreme Court (as of Jan 2024)

Answer 4

• 10 men, 2 women
• average age of 67 (youngest: 60, oldest: 71)
• all white
• mostly private-schooled.

Question 5

Reasons for new Supreme Court

Answer 5

• greater transparency; confusion among general public over status, role, work of Law Lords.
• brings into line with most other Western countries
• show separation of powers (power divided between 3 branches)

Question 6

Reasons why judiciary should be independent

Answer 6

• danger that gov will exceed its power
• citizens need to feel that cases will be dealt without bias
• judges should not be influenced by public opinion

Question 7

Examples of judicial independence

Answer 7

• judges free from any political interference by MPs/political parties
• judiciary in separate building from legislative/executive
• judges can make decisions without fear of damaging career
• judges cannot be removed from post without good reason

Question 8

Examples of judicial neutrality

Answer 8

• act without personal bias
• cases televised on internet
• public allowed to watch live cases
• cannot take part in any political activity
• judges cannot get involved in cases in which they have conflict of interest

Question 9

Problems with judiciary?

Answer 9

• often favour individual over state
• often from very narrow social background
• gov ministers have influence over final appointment of senior judges

Question 10

What is a judicial review?

Answer 10

• case held in senior court under senior court of judges in response to request of individual/association that wishes to challenge a decision or policy adopted by public body/law passed by parliament
• court can consider lawfulness of action and declare it ultra vires.

Question 11

What triggers a judicial review?

Answer 11

• offends ECHR
• body that made decisions did not have the power to do so
• individual/association didn’t receive equal treatment
• procedures not followed correctly

Question 12

Why are judicial reviews necessary?

Answer 12

• helps reserve rule of law
• helps prevent gov from abusing their powers
• enforces HRA
• makes public bodies accountable
• prevents discrimination

Question 13

What is a Declaration of Incompatibility?

Answer 13

• challenging of statute law by declaring them incompatible with HRA
• not legally binding, but provides potential check; parliament determines action taken
• less powerful than judicial review

Question 14

‘The Supreme Court checks gov effectively.’ - ARGUMENTS FOR

Answer 14

• measures put into place to ensure it has ability w/separation of powers, independent appointments; CRA; APPGDC published report criticising claims that judiciary had become politicised; parliament is somewhat supportive of power.
• number of judicial reviews vary, but can increase; 4200 in 2000 to 15,600 in 2013; definitely willing.
• DoIs can lead to amendments in legislation; Human Fertilisation and Embryology Act 1990 meant women unable to register deceased partner as father on birth certificate - declared incompatible in 2003 under article 8 of ECHR -> changed by gov/put pressure to explain certain decisions.

Question 15

What is the difference between the ECtHR and ECJ?

Answer 15

• ECtHR - est. by Council of Europe; hears cases under ECHR; based in Strasbourg, but not an EU body.
• ECJ - Supreme Court of EU; hears cases arsing under EU law; based in Luxembourg.

Question 16

How does leaving the EU affect the ECHR?

Answer 16

• doesn’t remove UK obligation to ECHR; repeal of HRA may make ECHR decisions less effective; UK not bound by changes to EU law.
• only way to remove UK from jurisdiction of ECtHR would be to withdraw from actual Convention.

Question 17

How does leaving EU affect Supreme Court?

Answer 17

• proportion of case load has related to EU law; no longer tasked with enforcing EU law over UK law
• removal of court superior to Supreme Court; could enhance status/authority
• power limited - revisiting earlier legal precedent; making ultra vires rulings where public bodies have acted beyond statutory authority; issuing DoIs under HRA.

Question 18

What three key functions are performed by the Supreme Court?

Answer 18

• act as final court of appeal in England, Wales and Northern Ireland.
• hear appeals from civil cases in Scotland.
• hear appeals in cases where there is uncertainty and thereby clarify the meaning of the law.

Question 19

What are the key doctrines/principles that underpin the Supreme Court’s work?

Answer 19

• rule of law - no one punished without trial (not always maintained); no one above law/all subject to same justice (parliamentary privilege?); general principles of Constitution result from decisions of judges (statute law reigns supreme).
• judicial independence/judicial impartiality.

Question 20

What features of the UK system support judicial independence?

Answer 20

• security of tenure - removing judge by impeachment requires vote in both Houses.
• guaranteed salaries - paid automatically from Consolidated Fund; cannot be manipulated.
• contempt of court - media, ministers, wider public prevented from speaking out publicly during legal proceedings.
• growing separation of powers
• independent appointments system
• training and experience - unlikely to compromise professional integrity.

Question 21

How is judicial impartiality guaranteed?

Answer 21

• anonymity - operate away from public eye/rarely speak out.
• political activity - not supposed to campaign on behalf of party/PG; views should not become matter of public record.
• legal justifications of judgements - explain how their decisions are rooted in law; decisions published on Court’s website.
• high-level training - elevation to bench suggests ability to put personal bias to one side.

Question 22

What are the threats to judicial impartiality?

Answer 22

• narrow recruiting pool from which senior judges have traditionally been drawn; most of those appointed have been privately schooled, Oxbridge-educated, white, middle-class men beyond middle age; creation of JAC hasn’t done much.
• senior judges have been drawn into more openly political conflicts; suggestion that passage of measures eg HRA has resulted in politicisation; growing public profile/conflict between judges/politicians.

Question 23

Has the UK judiciary become more politicised in recent years?

Answer 23

YES:
- HRA drew senior judges into political fray by requiring them to rule on merit of individual piece of statute law as opposed to its application.
- R (Factortame Ltd) v Secretary of State for Transport est precedent that UK courts could suspend Acts of Parliament where they were through to contradict EU law.
- creation of SC/physical relocation of most UK senior judges has brought them into public arena/subjected them to greater media scrutiny.
- politicians have broken with convention by publicly criticising rulings handed down by senior judges.
NO:
- creation of JAC/appointments process has enhanced transparency/addressed concerns over political interference.
- UK senior judiciary has become more independent in wake of CRA eg downgrading og role of Lord Chancellor.
- increased conflict is a positive bc it shows that courts are trying to hold gov accountable.
- senior judges still benefit from security of tenure/guaranteed salaries.

Question 24

What is the importance of judicial review?

Answer 24

• although statute law is supreme, higher-tier courts can establish common law through judgements.
• clarify meaning of the law.

Question 25

CASE STUDY: ultra vires and the ECtHR

Answer 25

• Reilly v Secretary of State for Work and Pensions - judges asked to rule on lawfulness of certain aspects of gov’s welfare to work scheme.
• Reilly argued that it had infringed protection against slavery in ECHR (had to work for private company to receive benefit payments).
• SC ruled that it hadn’t established slavery but operated ultra vires.

Question 26

CASE STUDY: SC and HRA

Answer 26

• Tigere v Secretary of State for Business, Innovation and Skills - SC able to use provisions of ECHR to protect against discrimination.
• blanket ban on eligibility for student loan based on immigration status was disproportionate interference on her right to education and also constituted discrimination under Article 14.

Question 27

Arguments that the UK judiciary has had a greater impact on the work of the executive/parliament in recent years.

Answer 27

• CRA enhanced judicial independence by reducing role of Lord Chancellor/removing Law Lords.
• physical separation allowed judges to develop more public profile.
• allowing cases under ECHR to be heard in UK courts empowered senior judges to directly question Acts of Parliament/actions of executive.
• precedent est in Factortame case allowed senior judges to suspend actions of parliament/executive if appeared to have breached EU law.
• extension of EU law in wake of Maastricht Treaty; conflict over wider range of policy areas.
• growth in judicial action had further, indirect impact; those in executive/parliament looked to head off potential conflict in courts by ensuring legislation compliant.

Question 28

Arguments that the UK judiciary hasn’t had a greater impact on work of executive/parliament in recent years.

Answer 28

• physical relocation did little to change legal-constitutional relationship between judiciary, executive, legislature.
• parliament under no legal obligation to fall into line with declaration of incompatibility.
• ministers can use executive’s control of parliament to pass retrospective legislation legitimising earlier actions.
• leaving EU means that UK isn’t subject to EU law beyond transition period, reducing scope for judicial action.
• move to review status of HRA/limit scope would significantly reduce ability of SC to exercise control over operation of executive/parliament.

Question 29

‘Supreme Court checks gov effectively.’ - ARGUMENTS AGAINST

Answer 29

• Measures put in place to try and limit power, esp judicial reviews; Judicial Review and Courts Act - courts have option of suspending quashing order in some cases, so that public body is given the opportunity to correct any failure, also has discretion to limit retrospective effects of order, so that things done by the public body before the quashing order was granted remain lawful; gov doesn’t like ability of judiciary -> ruling on Rwanda policy, JRCA aimed to reduce amount of court time spent on processing asylum/immigration cases.
• effectiveness of judicial reviews is highly dependent on who is in gov/majority; Johnson -> total no. of cases fell by 18% with 2.2% being successful; number may have been high, but only 4.6% success rate 2016-2020.
• DoIs not legally binding/parliament free to determine course of action; only 46 by July 2020 w/10 overturned.