Judiciary

Question 1

The Prorogation of Dispute 2019

Answer 1

-Johnson called for prorogation in September 2019 which was controversial because it would have prevented debate and scrutiny in the height of Brexit.
-The govt argued that the session was the longest session of the UK parliament and it was intended to ‘refresh its legislative agenda’ in Queen’s speech
-Supreme Court ruled that Johnson acted unlawfully in proroguing parliament and he was using the power for ‘stymying Parliament’(blocking them)
(the Supreme court decided they have the power to review Johnson’s actions via judicial review, first time reviewing prerogative powers)

Question 2

Supreme Court overview

Answer 2

-12 justices & based in Middlesex Guildhall.
-acts as the final cost of appeal for all cases in England, Wales & NI & hears appeals for civil cases in Scotland.
-final court of appeal & helps where there is legal uncertainty with common law via judicial review
-establish legal precedence

Question 3

The composition of the judiciary & the appointments process

Answer 3

-judiciary refers collectively to all UK judges (lay magistrates, serving on tribunals & the 12 justices etc).
-before Supreme Court began work, in Oct 2009, the highest court of appeal compromised of 12 Law Lords who sat in Appellate Committee of HOC, (members of HOC & judiciary).
-Supreme Court has power to hear appeals & review actions of public bodies to establish new rules or precedents.

Question 4

The composition & importance of the senior judiciary

Answer 4

-Senior judiciary compromises justices of the Supreme Court, heads of divisions, Lords justifies of appeal, high court Judges & deputy High court judges.
-senior judges use power of judicial review to clarify a legal position where statute law is unclear.
-forms body of legal precedent guiding lower courts & future lawmakers.

Question 5

How are the senior judiciary appointed?

Answer 5

-once made by the monarch on advice of the PM & Lord Chancellor.
-LC making picks on basis of ‘secret soundings’ with close associates & those serving in senior judiciary.
-claimed this undermined separation of powers & lacked transparency since the circle was narrow.
(Oxford, white, male, old).

Question 6

Constitutional Reform act 2005

Answer 6

-reduced power of the Lord Chancellor placing most senior judicial appointments into the hands of a new, independent Judicial Appts Commission (JAC).
-hoped this would make more socially representative judiciary.
-created Supreme Court which would be the highest court of appeal.
-retained role of Lord chancellor but lesser importance

Question 7

Lord Chancellor in action

Answer 7

-Alex Chalk introduced a new measure in 2024 to make it easier for members of the public to secure the financial backing of third parties when launching complex claims.
-said victims may feel like the court process is like a ‘David and Goliath battle when they’re facing powerful corporations with deep pockets’
-began with sub postmasters taking Post office to court on Horizon scandal

Question 8

The JAC

Answer 8

-means for lending greater transparency and legitimacy to appointment process
-15 commissioners, 12 of them(including Chairman) are appointed via open competition, and the other 3 selected by 2 senior members of judiciary
-Chairman is always a lay member
criticism: argued that the JAC’s set-up means that any ministerial discretion in the choice of judges is purely nominal, with the JAC being the final appointer

Question 9

Qualifications for appointment as justice to the UK Supreme Court

Answer 9

-must have either held high judicial office for at least 2 years.
-or been a ‘qualifying practitioner’ for 15 years.

A qualifying practitioner:
-has a senior courts qualification
-or is an advocate in Scotland or a splitter entitled to appear in the Scottish Court of Session & High Court of Justiciary.
-or is a member of the Bar of NI or a solicited in the Court of Judicature in NI.

Question 10

Process of appointing justices to the Supreme Court

Answer 10

-a vacancy arises,
-a 5 member selection commission is convened to consider possible nominees & make selection based on merits.
-a commission submits report to Lord chancellor identifying a nominee.

-LC either rejects, asks for reconsideration or,
-accepts selection by ‘notifying PM.
-once notcied, PM must recommend candidate to queen.
-appointment confirmed once monarch has issued letters patent.

Question 11

Does the supreme court ‘look like the UK’?

Answer 11

-accusations of elitism due to statutory qualifications & legal experience required.
-9/12 (75%) justices attended independent secondary school (7% of UK).
-11/12 (92%) attended Oxbridge (1% of UK).
-1/12 (9%) women (51% of UK).
-0/12 (0%) minority ethnic groups (14% of UK).
-65.1 is average age (40.5 in UK).

Question 12

Lord Reed, President of the Supreme Court

Answer 12

-67 years, went to an independent school and attended Edinburgh & Oxford Uni
-wrote the leading dissenting judgment in the Article 50 litigation, holding that the Government could initiate the UK’s withdrawal from the European Union without reference to Parliament

Question 13

3 reasons the UK Supreme Court was established

Answer 13

-concerns over the incomplete ‘separation of powers’.
-widespread criticism of the system under which Law Lords were appointed.
-confusion among general public over status, role & work of the Law Lords.

Question 14

3 key functions performed by Supreme Court

Answer 14

-to act as the final court of appeal for England, Wales & NI.
-to hear appeals for civil cases in Scotland.
-to hear appeals in cases of uncertainty & clarify the meaning of the law.

Question 15

Court of appeal: Northern Ireland protocol

Answer 15

-The Supreme court ruled the Northern Ireland protocol ‘lawful’ despite appeals from challenges from unionist politicians who claim it breaches the Acts of union& The NI act
-created a trade border between NI and rest of the UK as agreed in the 2020 Brexit withdrawal agreement

Question 16

Scottish law: 2nd Scottish referendum

Answer 16

-blocked 2nd referendum that was driven largely by the SNP and driven by Brexit
-Court said it was beyond the Scottish Parliament’s powers, per the devolution agreement in 1998

Question 17

Uncertainty: Voter ID

Answer 17

-As a result of legal challenges against pilot schemes to test out how the Voter ID system would work by the cabinet, the Supreme court confirmed that the cabinet office did have authority

Question 18

Key doctrines & principles underpinning Supreme Court: The rule of law

Answer 18

-A.V. Dicey identified rule of law as one of the twin pillars of the English constitution with the other being parliamentary sovereignty.
-rooted in the principle that equal justice should be available to all.

Question 19

Rule of law: No one can be punished w/o trial

Answer 19

-good in theory but not always maintained in practice
E.g. terrorist suspects have been subject to a range of punishments without trial under measures passed since 2001, including indefinite detention, imposition of control orders & freezing of assets.

Question 20

Rule of law: No one is above the law

Answer 20

-there are some who are not subject to the same justice & are ‘above’ the law.
E.g. the monarch, international ambassadors & MPs (under parliamentary privilege).

Question 21

nuance: nobody is above the law(partygate)

Answer 21

-political scandal about gatherings of government and Conservative Party staff during the COVID-19 pandemic in 2020 and 2021, when public health restrictions prohibited most gatherings.
-weakened Johnson’s position due to threshold of no confidence letters and his anti-corruption champion John Penrose resigning
-only got issued a fixed penalty notice regardless of breaking laws

Question 22

Rule of law: General constitution principles result from judges decisions

Answer 22

-while the decisions of judges (case law/common law) play a part in defining the UK’s constitutional arrangements, parliament is sovereign & statute law remains supreme.
-any legal precedent can be overturned by the means of a simple Parliament act.

Question 23

Judicial independence & Judicial impartiality

Answer 23

-rule of law demand that judges should be independant & dispense justice with degree of neutrality & impartiality.

Judicial independence: those in judiciary should be free from political control, allowing judges to apply justice properly without fear of consequence.
Judicial impartiality: where judges operate without personal bias in their administration of justice.

Question 24

What features of the UK system support judicial independence?

Answer 24

1. Security of tenure: no threat of suspension as to remove a judge by impeachment requires vote in legislature.
2. Guaranteed salaries: automatically paid by Consolidated Fund so can’t be manipulated.
3. Contempt of Court: under the sub judice rule, media, ministers & wider public are prevented from speaking out publicly during legal proceedings.
4. Growing separation of powers: creating of SC enhanced this.
5. Independent appointments system: JAC brings more transparency to process of appointments & addresses accusations of political bias.
6. Training & experience: most senior judges served long apprenticeships in law & have high status. Wouldn’t compromise integrity to defer to opinions of politicians.

Question 25

What is the sub judice rule? (example of nuance)

Answer 25

-prevents MPs or Lords from referring to a current or impending court case
-Lord Hain broke it in 2018 when he used the name of parliamentary privilege to publicly name Sir Philip Green as the subject of the Telegraph article alleging sexual harassment and racial abuse

Question 26

How is judicial impartiality guaranteed?

Answer 26

-impossible to guarantee it.
-promise of universal application of law requires bias prohibits colouring judicial decisions.

Question 27

4 ways judicial impartiality is achieved

Answer 27

Anonymity: operate away from Punic eye & don’t speak publicly & aren’t open to criticism.
Political activity: judges aren’t supposed to campaign on behalf of parties/ pressure groups. Must ensure their views don’t become public.
Legal justifications of judgements: explain how devious are rooted in law reduces bias. Their devious are published fully on the Court’s website.
High-level training: trained by Law Society. Elevation to the bench suggests ability to avoid bias.

Question 28

Threats to judicial impartiality

Answer 28

-narrow recruiting pool (life experiences are different to those brought in front of them). JAC has done little to address this issue.
-drawn into more openly political conflicts recently, (passage of measures in HRA 1998), resulted in politicisation (drawn into party politics).
-could show judges willing to take on political establishment in defence of civil liberties.

Question 29

Has the UK judiciary become politicised recently? Yes

Answer 29

• Daily Mail made headlines when it referred to the High Court as “Enemies of the People”, when it required the government to pass through Parliament an Act allowing it to initiate the British exit from the European Union.
  -HRA 1998 drew senior judges into political fray by requiring them to file on the ‘merit’ of individual piece of stature law rather than its ‘application’. i.e refusing to add gender ‘X’ unlike Australia + Canada
  -politicians have broken with convention by publicly criticising rulings handed down by judges. i.e Rwanda Bill turning into ‘revised treaty’ and emergency bill after it was deemed ‘unlawful’

Question 30

Has the UK judiciary becomes politicised recently? No

Answer 30

-security of tenure & guaranteed salaries helps insulate them from political pressure.
-creation of JAC increased transparency & addressed concerns over political interference.
-judiciary has become more independent in the wake of the Const reform act i.e downgrading role of Lord Chancellor

Question 31

The importance of judicial review

Answer 31

Judicial review: process by which judges review actions of public bodies to determine whether they acted in a lawful manner.
-while Supreme Court can’t strike down any because of parliamentary sovereignty, they are influential through ability to establish legal precedent & common law through their judgements.
-they clarify meaning of law rather than applying the letter of the law.

Question 32

What does Ultra Vires mean?

Answer 32

-‘beyond the authority’–} judicial review used to determine whether or not minister has acted beyond their authority

Question 33

Case study: Ultra vires & the European Court of Human Rights
(Reilly v Secretary of State for Work and Pensions) 2016

Answer 33

-judges were asked to rule about the lawfulness of certain aspects of the govt’s ‘welfare to work scheme’ –} R argued the department for work & pensions infringed the protection against slavery by requiring her to work for private company to get benefit payments
-Court ruled that they had operated ultra vires so it was unlawful

Question 34

How has power of the UK judiciary been enhanced?

Answer 34

-growing importance of the European Union law.
-impact of HRA 1998.

Question 35

European Union law (1972) & the Supreme Court

Answer 35

-UK incorporated the Treaty of Rome into UK law:
-gave European laws precedence over conflicting UK statutes.
-meant UK could be called to account at the European court of justice (ECJ).
-Factortame case (1990), UK courts permitted to suspend UK statutes appearing to violate EU law.

Question 36

Case study: Factortame

Answer 36

-refers to series of connected cases in which the ECJ established the precedent that UK courts could suspend any UK statute law where it appeared to violate the EU law.
-Factortame Limited (Spanish fishing company) challenged legality of Merchant Shipping Act (1988) under EU law.
-company had re registered 50 Spanish boats as British & purchased other UK fishing vessels.
-their catches counted against the UK’s fishing quotas even though the boats landed their fish in Spain.

Question 37

The HRA act & the Supreme Court

Answer 37

-passed in 1998 & came into force in Oct 2000.
-incorporated most the articles of the European Convention on Human Rights (ECHR) into UK law.
-allowing UK citizens go pursuee cases under ECHR directly through UK courts.
-before this they were heard at the European Court of Human rights (ECHR) in Strasbourg.

Question 38

The Supreme Court & the HRA (Tigere vs Secretary of State for Business, Innovation & Skills)

Answer 38

demonstrates how judges used provisions of the ECHR to protect individuals against discrimination.
-left Zambia aged 6 dependant on father who travelled to UK with a student visa.
-when her father left in 2003, she remained with her mum but Border agency were aware she’s “over stayed”.
-they awarded her ‘temporary permission’ & ‘discretionary leave to remain’ in the UK.
-she completed a levels & secured place in Northumbria University but wasn’t eligible for her student loan, because she wouldn’t be able to apply for ‘indefinite leave to remain’ in UK till 2018.
2015, SC accept her appeal on grounds that negative impact on her rights inter article 2 (right to education) of the ECHR & 14 (prohibiting discrimination).

Question 39

The limitations of the Supreme Court’s power under the HRA

Answer 39

-HRA is not entrenched or superior to regular statute.
-the HRA can be amended, suspended & derogated: process of which country is exempted from observing law or regulation, or repealed.
-cant strike down parliamentary statute.
-courts, however, can make use of HRA to establish precedent in common law.
-HRA also has hidden influence through process of draft legislation being examined by parliament’s Joint Committee on HR to ensure its HRA compatible.

Question 40

The changing character of judicial action in the UK

Answer 40

-judicial review requires senior judges to clarify the legal meaning of a specific law/regulation.
-may involve reviewing appeal cases heard at inferior courts.
-statute law means judicial review is less significant than in USA because of parliamentary sovereignty.

Question 41

Has the UK judiciary had a greater impact on the work of executive & parliament in recent years? YES

Answer 41

-CRA 2005 enhanced independent by reducing Lord Chancellors role.
-by allowing ECHR cases be heard in UK courts, HRA empowered senior judges to questions acts of parliament.
-precedent established under Factor-tame case allows senior judges to suspend actions of parliament/executive when they break EU law.

Question 42

Has the UK judiciary had a greater impact on the work of the executive & parliament in recent years? NO

Answer 42

-although HRA gives judges right to issue ‘declaration of incompatibility’ where act violates ECHR, parliament is under no legal obligation to follow court’s ruling.
-ministers can use executives control to pass retrospective legislation legitimising earlier actions.
-leaving the EU meant the UK would not be subject to EU law beyond the transition period so reducing scope for judicial action.

Question 43

Brexit & Court’s power under the HRA

Answer 43

-much critics of Eu judges is aimed at ECtHR.
-not an EU institution & was established by the Council of Europe, an intergovernmental organisation to hear cases arising under ECHR. (1950)
-this convention incorporated into UK law under HRA & not EU law leads to criticism on the right.
-leaving the EU doesn’t remove UK’s obligations under the ECHR any more than repealing HRA would.
-only way to remove selves from jurisdiction of the ECtHR would be to withdraw from the Convention itself.

Question 44

Brexit & the Courts power under EU law

Answer 44

Whereas leaving the EU had little impact on the status of HRA, Brexit withdrawing from the Treaty of Rome meant that EU law wouldn’t take precedence over UK law & ECJ would no longer have jurisdiction over the UK.

Question 45

3 ways leaving EU impacts UK Supreme Court

Answer 45

-a proportion of its case load in recent years has related to EU law.
-the Supreme court will no longer be tasked with enforcing EU law over UK law.
-removal of a court superior to Supreme Court severs to enhance supreme courts status & authority.

Question 46

What have courts become according to Professor Bagdanor?

Answer 46

In the Guardian, he states that our courts have become ‘constitutional in terms of the protection of human rights. The gap could well be filled by the judges & if that happens Brexit will increase the danger of a clash between parliament & the judges.’

Question 47

The evolution of the UK Supreme Court

Answer 47

-The decisions of SC to step in when Johnson attempted to prorogue parliament made watershed in evolution of the institution.
Though, CRA enhanced the power of court, there’s been suspicion that it may become too independent, stated in the 2006 UK Government & Politics Annual survey
“UK Supreme Court may have more in common with its US counterpart then we would initially think.”

Question 48

The overall impact of the UK Supreme Court

Answer 48

-Power is limited to 3 main areas in the wake of Brexit:
-revisiting & reviewing earlier legal precedent established under common law & case law.
-making ultra views rulings where they believe public bodies acted beyond their statutory authority.
-issuing ‘declarations of incompatibility’ under the HRA 1998.

Question 49

Has the judiciary had a big impact on the work of WM? Yes

Answer 49

-The separation of powers created through the CRA has led to more transparency i.e the JAC
-Supreme court rulings often lead to an outcome that upholds democracy i.e Factortame
-Senior judges can rule acts ultra vires i.e Reilly v Secretary of State for Work and Pensions

Question 50

Has the judiciary had a big impact on the work of WM? No

Answer 50

-Leaving the EU has meant the UK is no longer subject to its laws, reducing scope for judicial action i.e abandoning the Charter of Fundamental Rights, with clauses like the prohibition of non-refoulment
-Ministers can use supremacy to pass retrospective legislation that legitimises earlier actions i.e HM Treasury v Ahmed + others–} freezing suspected terrorists bank accounts led to conter-terrorism act 2008(allowed to do this under provided reasons)
-replacing HRA would further limit role of SC i.e bill of rights argument

Question 51

2020 Sutherland v Her majesty’s advocate (Scotland)

Answer 51

-limitations on the right to privacy.
-Sutherland was conceited for attempting to indecently communicate with a 13 year old even tho he had been in correspondence with a 48 year old decoy from Groom Resisters Scotland.
-unanimously rejected his appeal that using the covertly obtained evidence against him breached his Article 8 ECHR right to privacy.

Question 52

2020 BEGUM v Special Immigrations Appeals commission & Secretary of State of the Home department

Answer 52

-right to challenge the withdrawal of British citizenship.
-Court of Appeal ruled that Shamima a young woman who left the Uk at 15, to join the Islamic state, had a right under Article 2 & 3 of the ECHR to challenge the Uk govts deision t strip her of British citizenship.
-also said that in the interests of justice, she should be allowed to return to the Uk to plead her case.

Supreme Court ruled she wouldn’t be permitted.

Question 53

The apparent threat posed by the Supreme Court’s growing authority & influence

Answer 53

-recent coverage of SC questions if it’s too powerful.
-belief that there’s been a blurring of traditional lines that divide those who ‘make’ the law (politicians) & those who ‘apply’ it (judges).
-conspiracy that judges have become like ‘politicians in robes’.

-however, this theory is flawed, since judges have interpreted & clarified laws when resolving disputes & their ability to establish precedent through common law was always seen as quasi-legislative power.

Question 54

The unelected nature of the Supreme Court

Answer 54

-SC has no more power than the equally unelected Appellate Committee of HOL it replaced in 2009.
-very unheard of to elect judges in other countries.
-because Judicial independence requires that senior judges are free to interpret the law & dispense justice fairly without fear of being removed from office.

Question 55

Judicial independence demands a degree of unaccountability

Answer 55

-Must sometimes place trust in those unaccountable with big decisions like Withdrawal act

Question 56

Factors enhancing the authority of the Supreme Court

Answer 56

-a more independent & less-opaque appointments process that applied to the Law Lords.
-a clearer separation of powers accompanied by a clear physical separation between legislature & judiciary.
-ongoing process of ‘demystification’ via public visits, an intelligible website & enhanced media coverage.

Question 57

Comparing to the US: judicial review

Answer 57

-Article 3 of US const. focussed on organisation & structure of the federal judiciary, making no mention of what subsequently emerged from the Courts primary tool: judicial review.
-The power of judicial review was discovered + developed through justices rulings rather than a vested power.

Question 58

Comparing to the US: development of power

Answer 58

-Though the UK has no ‘fundamental law’ for the Supreme Court to interpret, the Court is possessed of the powers previously held by the Law Lords.
-How far the SC develops, depends on extent to which it can sustain confidence of other political institutions & the wider public.