Operating principles and doctrines underlying the Supreme Court

Question 1

What are the three operating principles that underlie the work of the Supreme Court?

Answer 1

• Judicial independence
• Judicial neutrality
• The rule of law

Question 2

What A.V Dicey see as being the two twin pillars of the constitution?

Answer 2

The rule of law and parliamentary sovereignty

Question 3

What are the three main strands of the rule of law according to A.V Dicey?

Answer 3

• No one can be punished without trial
• No one is above the law and all are subject to the same justice
• The general principles of the constitution result from judicial decisions rather than parliamentary statute

Question 4

Why is the the idea that no one can be punished without trial not always upheld?

Answer 4

Because terrorist subjects have been subject to a range of measures without trial under measures passed since 2001?

Question 5

Why is the the idea that no one can be punished without trial not always upheld?

Answer 5

Because terrorist subjects have been subject to a range of measures without trial under measures passed since 2001?

Question 6

Give three examples of measures passed against terrorist subjects since 2001?

Answer 6

• Indefinite detentions
• Freezing of assets
• Imposition of control orders

Question 7

What is a control order?

Answer 7

It restricts an individuals liberty for the purposes of protecting them against terrorism

Question 8

Why is the principle that all are subject to the same justice not always upheld?

Answer 8

The monarch, foreign ambassadors and MPs are effectively above the law.

Question 9

Give an example of MPs acting as though they are above the law?

Answer 9

When some tried to draw on the idea of parliamentary privilege to stop legal proceedings following the 2009 expenses scandal

Question 10

Give two examples of types of law that stem from the decisions of judges

Answer 10

Case law and common law

Question 11

Why is the idea that the general principles of the constitution stem from judicial decision making flawed?

Answer 11

Because parliament remains sovereign and statute law reign supreme. Any legal precedent can be simply overturned by an Act of Parliament

Question 12

What does the rule of law demand that all judges do?

Answer 12

That they should operate with a high level of independence and dispense justice with a degree of neutrality

Question 13

Why would the absence of judicial independence be a threat to judicial neutrality?

Answer 13

Because the impartiality of judges is compromised if they are subject to external control

Question 14

Why does judicial independence not guarantee judicial independence?

Answer 14

Because judges may still allow their personal views to impact the way they dispense justice

Question 15

What is judicial independence?

Answer 15

The principle that those in the judiciary should be free from political control.

Question 16

What does judicial independence allow judges to do?

Answer 16

Do the right thing and apply justice properly without the fear of consequences

Question 17

What is judicial neutrality?

Answer 17

This is where judges administer justice impartially

Question 18

What is judicial neutrality an essential requirement of?

Answer 18

The rule of law

Question 19

List the six main ways that judicial independence is maintained

Answer 19

• Security of tenure enjoyed by judges
• Guaranteed salaries paid from the consolidated fund
• The offence of contempt of court
• Growing separation of powers
• Independent appointments system
• Training and experience of senior judges

Question 20

Explain how judges are provided with security of tenure

Answer 20

They are appointed for an open-ended term, limited only by the requirement that they retire at 75. Members of the senior judiciary can only by removed via impeachment proceedings requiring a vote in both houses of parliament

Question 21

What is the benefit of judges receiving security of tenure?

Answer 21

Because politicians cannot influence them by threatening to sack or suspend them

Question 22

What is the benefit of judges salaries being seen as standing services and being paid directly from the consolidated fund?

Answer 22

Because it means politicians are unable to manipulate judges’ salaries as a way of controlling them

Question 23

What is the offence of contempt of court?

Answer 23

The idea that the media, ministers and other officials are forbidden from speaking out publicly during legal proceedings

Question 24

What was the offence of contempt designed to do?

Answer 24

To ensure that justice is administered fairly, without undue pressure being brought to bear by politicians and the general public

Question 25

How have the separation of powers between the senior judiciary and the other branches of government been strengthened?

Answer 25

The downgrading of the position of lord chancellor and the creation of the Supreme Court

Question 26

Why did the separation of powers between the senior judiciary and the other branches of government need to be strengthened?

Answer 26

• The most senior judges were also part of the legislature (law lords)
• The lord chancellor had a role in all three branches of government

Question 27

What did the 2005 Constitutional Reform Act see the creation of?

Answer 27

The Judicial Appointments Commission (JAC)

Question 28

How has the creation of the JAC proved beneficial?

Answer 28

It has brought greater transparency to the process of judicial appointments and addressed concerns that the previous system was open to political bias

Question 29

How does the training and experience of senior judges help maintain judicial independence?

Answer 29

Senior judges will have already served an ‘apprenticeship’ as barristers and will have achieved a certain status within their chosen profession. They will most likely take considerable pride in their position and will therefore be unlikely to defer to politicians or public opinion, so as to not compromise their judicial integrity

Question 30

Why is it impossible to absolutely guarantee judicial neutrality?

Answer 30

Because judges are human and will bring some degree of personal bias to their work, however, such bias should not be allowed to cover judicial decisions

Question 31

List the 4 main ways that judicial neutrality is upheld?

Answer 31

• The relative anonymity of senior judges
• Restrictions on political activity
• High-level training
• Legal justifications of judgements
• Peer review

Question 32

How is the anonymity of senior judges maintained?

Answer 32

They work away from the public eye and rarely speak out on issues of law or policy. They are expected to avoid being drawn into open defence of their rulings and avoid criticising the government

Question 33

How does the relative anonymity of senior judges help maintain judicial neutrality?

Answer 33

Because judges will not have to worry about their popularity in the public eye when administering justice

Question 34

Explain the restrictions judges have on political activity?

Answer 34

They are not supposed to campaign on behalf of a political party or pressure group. They can vote, but their political views should not become a matter of public record

Question 35

How do restrictions of political activity help maintain judicial neutrality?

Answer 35

Because judges will not let political bias affect the way they dispense justice

Question 35

How do restrictions of political activity help maintain judicial neutrality?

Answer 35

Because judges will not let political bias affect the way they dispense justice

Question 36

Who monitors judges’ standards?

Answer 36

The Law Society

Question 37

How does high level training help maintain judicial neutrality?

Answer 37

They have commonly served has a barrister for many years before being elevated to this rank and the promotion will have been given with the idea that they are capable of being neutral in mind. Additional guidance and training can be provided and they can be moved away from more serious cases if their ability to be independent is in question or being monitored

Question 38

Why is it difficult to remove a judge whose neutrality is in question?

Answer 38

Because of security of tenure

Question 39

What is the main threat to judicial neutrality?

Answer 39

The fact that senior judges have been historically drawn from the same narrow pool of older white men from similar socio-economic and educational backgrounds. This begs the question of how they can be neutral when most have led a completely different life to those brought before them

Question 40

Why has the creation of the JAC failed to address concerns of elitism in the senior judiciary?

Answer 40

Because the proportion of women and BAME citizens who are magistrates is far higher than the proportion of women and BAME citizens who are members of the senior judiciary

Question 41

Why have some critics seen measures like the 1998 HRA as a threat to judicial neutrality?

Answer 41

Because they have led to increased politicisation of the judiciary, like when judges were dragged into areas of controversy over the HRA

Question 42

Define politicisation?

Answer 42

Where individuals or institutions previously seen as above the political fray are dragged into it.

Question 43

Why do many see the politicisation of the judiciary as actually enhancing the separation of powers?

Answer 43

Because they appear increasingly willing to take on the establishment to protect civil rights and liberties

Question 44

What did the Guardian have to say about the supposed politicisation of the judiciary over Brexit?

Answer 44

That ministers simply cloaked a power grab in an unmeritorious arguement that the Supreme Court has failed to keep out of the political arena

Question 45

How did the judiciary become more politicised over Brexit?

Answer 45

Ministers accused the judiciary of being out of touch and attempted to put certain executive decisions beyond the remit of the courts. However, the courts argued that the rule of law states that all public bodies must act in compliance with the law and that recourse to the courts must be possible when they do not. The government thought that they should be exempted from this principle

Question 46

List the reasons why judicial independence is important

Answer 46

• If judges are not independent, there is a danger that the government will overstep its powers without legal justification; without any effective check on the government, tyranny may ensue
• Citizens must feel that the cases they are involved in are being decided upon on the basis of justice and the rule of law. It may suit the government to discriminate against a certain group for political reasons, and the judiciary can prevent this. Citizens must feel that their rights are well protected
• It’s important the judges are not impacted by short term issues like politicians often are
• Prevents collusion between the judiciary and the government

Question 47

Describe an instance where an independent judge is able to take a more long term view

Answer 47

Following a terrorist atrocity, there may be calls to curb individual rights, but an independent judge could recognise that this may damage human rights in the long run

Question 48

What is the rule of sub judice?

Answer 48

Another term for the idea that it is a contempt of court for the government to attempt to interfere with a case or speak about it in public or parliament

Question 49

List the reasons why judicial neutrality is important?

Answer 49

• The rule of law demands that all people must be equal in the eyes of the law
• Judges are only supposed to interpret the meaning of the law and not the fairness of it; meaning they must remove any personal feelings or emotions when dispensing justice. If people believe the law must be changed, they must appeal to parliament rather than the judiciary
• People should have confidence that their case will be heard fairly and without discrimination
• It is another way of ensuring political independence, ensuring that senior judges will not let any political opinions influence how they rule on a case with implications for the government

Question 50

Explain how peer review helps maintain judicial neutrality

Answer 50

• Any judicial decision by a court underneath the Supreme Court can be challenged for judicial neutrality
• When a case concerns the ECHR then the case can be brought before the European Court of Human Rights
• Supreme Court cases will be heard by at least five judges. This ensures that no single prejudice will influence the final decision as the decision must be explained the the other judges meeting on the case

Question 51

Make the case that the judiciary has become more politicised in recent years

Answer 51

• The HRA drew senior judges into the fray as they now as they now have to rule on the merit of an individual piece of statute law as opposed to just its application
• The creation of the Supreme Court and the relocation of most senior judges to Middlesex Guildhall has brought senior judges into the public arena and subjected them to greater media scrutiny
• Politicians have broken the convention that they should not criticise decisions by the judiciary

Question 52

Give an example of a politician breaking the convention that they should not publicly criticise judicial decisions

Answer 52

David Davis did this as Brexit minister when the High Court stated that the government could not trigger article 50 without parliamentary approval

Question 53

Counter the idea that the judiciary has become more politicised in recent years?

Answer 53

• It can no longer strike down Acts of Parliament that are incompatible with EU law
• The appointments process for senior judicial appointments has become more transparent and less open to accusations of political interference through the creation of the JAC and the judicial appointments process
• The CRA enhanced the separation of powers
• Increased conflict between the judiciary and executive is positive as it shows they are willing to step in when they feel our rights are being encroached upon
• Senior judges still benefit from security of salary and tenure

Question 54

Make the case that the Supreme Court is neutral

Answer 54

• The CRA removed most threats to independence
• Justices have security of tenure and salary
• Appointments are largely independent of politics
• Both Labour and Conservative governments have been equally controlled by the Supreme Court

Question 55

Make the case that the Supreme Court is not neutral

Answer 55

• Ministers can exert a small amount of influence over senior judicial appointments
• Justices come from a very narrow social background
• Conservatives claim that the Supreme Court contains too many liberal lawyers who are on the side of rights protection as opposed to security, law and order
• Lords Reed and Kerr are both Supreme Court Justices while also holding life peerages in the lords. This means they are able to rejoin the legislature once they step down and may have some connections to fellow life peers