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British Politics > Judiciary > Flashcards

Judiciary Flashcards

1
Q

What act established the Supreme Court?

A

Constitutional Reform Act 2005

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2
Q

When was the Supreme Court start work?

A

October 2009

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3
Q

Whose government created the court and why?

A

Tony Blair - to end the fusion of powers at the highest level of the judiciary and modernise it by increasing independence and neutrality.

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4
Q

What roles did the chancellor hold before the CRA?

A

-Cabineet minister in government (executive)
-Chair on sittings in the HoL (legislative)
-Head of Judiciary who appointed other judges (judicial)

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5
Q

WHat did the CRA do to the Lord Chancellor?

A

Removed the judicial and executive roles, and the chancellor is now just a government minister.

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6
Q

What three kinds of cases is the SC the highest court of appeal for?

A

Criminal, public and constitutional

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7
Q

What are the constitutional issues the Supreme court deals on?

A

Judging ultra vires cases
Judging wether devolved bodies are ultra vires
Judging acts of parliament against the HRA

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8
Q

How many members are on the supreme court?

A

12

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9
Q

How many members judge cases?

A

An odd number to provide a majority vote.

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10
Q

What qualifications are needed to become a judge?

A

Served as a senior judge for 2 years or been a qualified lawyer for at least 15

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11
Q

How is the court unrepresentative?

A

10/12 are male
11/12 are white
11/12 studied at oxbridge
All are 60+

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12
Q

Who comprises the independent nomination board?

A

5 members, consisting of the president of teh court, a member of teh JAC and a member of each of the equivalent bodies for Scotland and NI.

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13
Q

What is judicial neutrality?

A

The idea that judges will exercise their functions without being influenced by their own personal bias or political opinion

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14
Q

In what ways is judicial neutrality safeguarded?

A

Judges have traditionally remained anonymous
They aren’t allowed to campaign for parties
Decisions are read in full and cases televised on YT

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15
Q

How has judicial neutrality been questioned in regard to its unrepresentation?

A

The narrow composition leads to limited perspectives and an inability to fully understand issues relating to certain topics.

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16
Q

Which case exemplifies unreprsentation being a threat to neutrality?

A

Radmacher v Granatino in 2010
Issues around a pre-nup
Lady Hale was hte only one to dissent from majority
She said she thought that issues where women would be predominately affected should be done in parliament.

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17
Q

How has judicial neutrality been threatened through Brexit

A

Two cases - parliamentary proroguing and article 50

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18
Q

What is judicial independence?

A

The idea that judges must be free of political interference

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19
Q

What three ways is Judicial independence safeguarded?

A

Security of tenure
Pay
Appointment

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20
Q

How does security of tenure safeguard judicial independence?

A

Judges can’t be removed from office unless they break the law or are impeached
The only limit on their service is an official retirement age of 75
Judges are immune from legal action arising from comments they make on cases in court, so they are free to say what they want.

21
Q

How does pay safeguard judicial independence?

A

Their pay is paid automatically from the consolidation fund - can’t be manipulated by government
They are paid well so there is less incentive for them to take financial offers due to pressure eg: lobbying

22
Q

How much are supreme court judges paid?

A

226,193

23
Q

How does the appointment process safeguard judicial independence

A

-It is unelected
-They have to be of the highest caliber, having been a lawyer for 15 years or a senior judge for 2
-There is little influence from the government other than the Lord Chancellor’s say, however even this is limited.
-System is very transparent.

24
Q

What three things undermine judicial independence?

A

-Higher profile
-Increased political dialogue
-Elite crossover.

25
Q

How does a higher profile undermine judicial independence?

A

With recent high profile cases, such as the Nov 2023 Rwanda bill ruling, the 2016 Article 50 ruling and hte 2017 proroguing of parliament ruling, the court has become more in profile, reducing their anonymity + making them more prone to interviews and such. Also seen through greater calls for representation on the court.
This is also facilitated by the move to Guildhall.

26
Q

How does political dialogue undermine judicial independence?

A

Recently, MPs have been criticising the supreme court more, for example in 2003 when David Blunkett condemned the release of 9 Afghan hijackers, or the negative backlash to the Rwanda ruling from senior conservative politicians.

27
Q

How does a cross over of elites undermine judicial independence?

A

Due to the court’s unrepresnetiveness, with 11/12 studying at Oxbridge colleges, and, in 2019, 144 Mps having attended oxbridge, its unsurprising that these people know each other and may have bias towards each other.

28
Q

Are the ECHR and HRA superior to statute law?

A

No - the EHCR is a foreign agreement and the HRA is statute law, incorporating the EHCR’s terms into the UK constitution. It isn’t enshrined, so can be repealed if we pull out of the EHCR, as the 2021 Sunak government discussed.

29
Q

What power does the supreme court have in terms of the ECHR?

A

They can declare acts of parliament incompatible with the HRA and urge parliament to change them, although they have no power to strike down or compel change in the act due to parliamentary sovereignty.

30
Q

What is an example of parliament ignoring the Supreme Court’s ruling?

A

2023 Illegal Immigration Bill - Home Secretary Suella Braverman included in the bill that she knew it would go against the HRA, but that parliament would go through with it anyways They initially planned to do so following the Nov 2023 ruling that it didn’t violate the rights of those being deported as Rwanda could then be flying them back to their countries.

31
Q

How secure is the HRA?

A

It can be repealed with a single act of parliament and is not enshrined, so cannot be said to be secure at all.

32
Q

Does parliament usually listen to the supreme court?

A

Yes, parliament will normally at least address any declarations of incompatibility and also has a Joint Committee on Human Rights to scrutinise bills and ensure they are compatible with the HRA.

33
Q

What is an example of parliament listening to the Supreme Court?

A

R v Secretary of State 2018
Led to new legislation allowing same sex couples to seek civil partnerships.

34
Q

What is an ultra vires case?

A

A case where the supreme court has the power to judge whether a government or figure hasn’t acted beyond the authority given to them.

35
Q

What power does the supreme court derive from judicial review?

A

The ability to strike down secondary legislation and laws from devolved bodies as well as in the UK.

36
Q

Why could the importance of judicial review be seen to be exaggerated?

A

The majority of cases are in local authorities and only 10% of cases against the government actually win

37
Q

What are the 3 examples of Judicial review cases?

A

2017 Miller v The Prime Minister
2016 Miller v Secretary of State for Exiting the EU
2014 HS2 Action Alliance Limited v Secretary of State for Transport

38
Q

What is the 2017 Miller v The Prime Minister case?

A

Boris Johnson Prorogued parliament

39
Q

What were the arguments for proroguing parliament?

A

Johnson argued it was a routine prorogation and one that normally follows the selection of a new PM
Critics said it was to avoid parliament’s scrutinies of the Brexit plans and to make it harder for them to block a no-deal Brexit.

40
Q

Who did the Supreme Court end up siding with in Miller v The Prime Minister 2017?

A

Gina Miller, as the sovereignty of parliament was undermined if prerogative power to prorogue could be used to prevent parliament from exercising its legislative authority.

41
Q

What was the 2016 Miller v Secretary of State for Exiting the EU case?

A

Gina Miller argued that the government couldn’t give notice of Britain’s intention to leave the EU without parliament giving its approval, whereas the government argued it could use it’s power to make or unmake treaties with foreign governments to do just that.

42
Q

What was the decision made in 2016 Miller v Secretary of State for exiting the EU?

A

-Leaving the EU would involve the removal of rights decided on by Parliament t in the 1972 European Communities Act, so parliament should have to give consent
-Scottish, Welsh and Northern Irish parliaments could not veto an Act of Parliament giving consent to Article 50.

43
Q

What is the 2014 HS2 Action Alliance Limited v Secretary of State for Transport case?

A

Enviromental campaigners sought judicial review on whether the governments plans compiled with EU conditions for the environment.

44
Q

What was decided on in the 201 Action Alliance Limited v Secretary of State for Transport case?

A

-The case was dismissed as the merits of the scheme remained open to debate until parliament reached a decision
-The court rejected the idea that courts should monitor the debates, arguing that it undermined the principle that judges shouldn’t interfere with parliament.

45
Q

What are the 3 main arguments over the court become increasingly political?

A

-Quasi-Legislative role
-High profile cases
-Increased interference in government.

46
Q

How does the court have a quasi-legislative role and what does this mean?

A

The court has gained the ability to strike down secondary acts of parliament through the HRA and judicial review, giving them a quasi-legislative role with some control over what bills are passed.

47
Q

Why is the court’s quasi-legislative role a particular worry?

A

The court is not democratically elected, it is unable to be held to account and is unrepresentative, which weakens the principles of democracy. However it could be argued that this is unavoidable as long as they are asked to carry out the law, and that judicial independence and neutrality keep it democratic.

48
Q

How do high profile cases make the court more political?

A

Recent high profile cases, such as the 2023 Rwanda Bill ruling, 2017 Miller v The Prime Minister and 2016 Miller v TSOSFETEU have boosted the awareness people have of the courts, with judges being less anonymous and the media and politicians commenting more on the cases. This increases politicisation as it means the judges now face increased scrutiny which can influence their decisions.

49
Q

What are the arguments that the SC hasn’t become more politicised?

A

-the more transparent appointments process
-can no longer strike down laws for violating European law
-Maaybe the government is the problem.

British Politics (10 decks)

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