Relations Between the Branches- The Judiciary

Question 1

What two powers does the Supreme Court have?

Answer 1

It can hear appeals (comes from lower) and review the action of other public bodies (review of things are constitution: Rwanda Bill, proroguing Parliament)

Question 2

What is the ‘joint enterprise’ rule and how did the court change its 1985 ruling in 2016?

Answer 2

‘Hirsi’ murdered someone and at the time of murder, ‘Jogee’, who was with him that evening, was shouting encouragement. Both were convincted of murder under joint enterprise- meaning any person who was part of the murderer’s group could be convicted of the same crime
Jogee appealed against his conviction, and the Supreme Court ruled that any person who is part of the group at the time of a crime can only be convicted of the same crime if they have intent, encouraging the crime or assist in it, this happened in 2016 and established a new precedent

Question 3

What is the judiciary?

Answer 3

All UK judges from lay magistrates and those serving on tribunals right up to the 12 senior judges sitting in the UK Supreme Court. In a wider sense, it might be seen as encompassing all of those who are directly involved in the administration and application of judges.

Question 4

How many judges are there on the Supreme Court?

Answer 4

12

Question 5

What 2 nations have parts of their judiciary devolved?

Answer 5

Scotland and Northern Ireland- they operate under different legal arrangements from those in England and Wales as justice is a devolved power

Question 6

What does the Supreme Court act as for all four home nations?

Answer 6

The highest court of appeal

Question 7

What are the three court divisions in England and Wales where the Supreme Court can hear appeals from?

Answer 7

-Criminal division (appeals from the Crown Court)
-Civil division (appeals from High Court, tribunals and certain cases from County Court)
-Queen’s bench division (contract lost etc., commercial court and admirally court). goes up from High Court

Question 8

When was the Constitutional Reform Act and what did it reduce?

Answer 8

2005
It reduced concerns over the incomplete separation of powers or partial fusion of powers in the UK- specifically concerns with the lord chancellor and presence of law lords in the House of Commons, reduced criticisms of the opaque system under which the senior judges (law lords) were appointed, reduced confusion over the work of law lords, specifically over the distraction between HoL legislative and judicial functions, reduced power of lord chancellor

Question 9

What did the CRA replace?

Answer 9

Replaced old role of lord chancellor with 3 separate roles
Placed most senior judicial appointments into the hands of a new independent judicial Appointments Committee

Question 10

What did the CRA introduce?

Answer 10

Supreme Court to the UK
Separated law making body from policy making body
Introduced 3 different roles which used to all belong to the role of lord chancellor

Question 11

Where were the judiciary and executive?

Answer 11

Judiciary was within HoL
Executive was within HoC

Question 12

Where was the Supreme Court located before it was moved into its own branch?

Answer 12

It was located via the 12 law lords (who then became Supreme Court justices) who sat in the Appellate Committee of the HoL

Question 13

What were the 3 big issues the CRA was passed to respond to?

Answer 13

-Concerns over incomplete separation of powers in the UK, there was a partial fusion of powers between the judiciary branch and legislative branch, specifically the position of lord chancellor and the presence of the law lords in the HoL (legislative branch), lord chancellor used to lead Hoc and oversaw law lords which breached impartiality and broke the ability to review case law effectively, this caused undemocratic judges and now all of HoL was appointed by monarch on advice of the PM and patronage powers, which makes lord chancellor partial and limits HoL power (would just act on behalf of PM, bias)
-Criticisms of the opaque system under which senior judges (eg. law lords) were appointed
-Confusion over work of law lords- there was a widespread failure to understand the distinction between the HoC’s legislative and judicial functions

Question 14

What are ‘secret soundings’?

Answer 14

The informal and secretive way in which most senior judges were once appointed

Question 15

What functions does the Supreme Court perform after the CRA?

Answer 15

-It acts as the final court of appeal in England, Wales and NI
-It hears appeals from civil cases in Scotland
-It clarifies the meaning of the law, by hearing appeals in cases where there is uncertainty (part of common law)

Question 16

What is judicial neutrality?

Answer 16

Where judges operate impartiality in their administration of justice. It’s an essential requirement of the rule of law. Objectivity

Question 17

What is judicial independence?

Answer 17

Principle that those in the judiciary should be free from political control. This independence allows judges to ‘do the right thing’ and apply justice properly without fear of consequences politically

Question 18

What happened to judicial independence and neutrality after the CRA?

Answer 18

Increased because separation from HoC, because their own independent body- less influenced by politics or nepotism (PM’s patronage powers gone, judges now appointed by separate body not lord chancellor)

Question 19

Who was the first woman appointed to the highest court?

Answer 19

Brenda Hale in 2004 as a law lord, then became president of Supreme Court from 2017-2020 upon retirement

Question 20

What were some of the criticisms of the old Law Lords?

Answer 20

The system they were elected via was untransparent, undermined the separation of powers and resulted in a senior judiciary drawn almost exclusively from a very narrow social circle (public school and Oxbridge educated, white male, beyond middle aged)

Question 21

What happened to existing Law Lords under the CRA?

Answer 21

They became the founding justices of the Supreme Court- while they remained members of the HoL they couldn’t sit and vote in the chamber for as long as they remained justices

Question 22

How are new Supreme Court justices appointed under the CRA?

Answer 22

Under the Act, judges appointed to this court after October 2009 are not automatically appointed peerages. Vacancies in the UK Supreme Court are filled by a selection committee (judicial appointments committee)

Question 23

What do Supreme Court justices need to have on their CV?

Answer 23

Candidates must have either held high judicial office for at least 2 years, or been a qualifying practitioner for 15 years

Question 24

Does the current Supreme Court model meet the requirements of the microcosm model?

Answer 24

No because the average age is 68, 83% are male, 67% went to independent schools and 91.6% went to Oxbridge

Question 25

What is representation like for magistrates?

Answer 25

56% were women in 2020 but only 20% were heads of division
14% of population are BAME in UK, it’s 13% in 2020 for magistrates but only 4% of High Court judges are BAME in 2020
representation is better in lower courts than in senior judiciary fields

Question 26

How is there judicial independence?

Answer 26

1) CRA 2005- enshrines in law a duty on government ministers to uphold independence of judiciary, Lord Chancellor’s judicial functions largely transferred to Lord Chief Justice, independent Supreme Court established from 2009, a new Judicial Appointments Committee set up independent from executive, a new Judicial Ombudsman son investigate complaints about appointments process
2) Judicial Appointments Commission- launched in 2006, lot more independent in appointing judges and lot less role for Lord Chancellor
3) Security of tenure- once appointed, judges can’t be sacked, they remain in office until they retire at 75, no removal or demotion, HoL and HoC both last agreed to a sacking in 1830, junior judges may be removed by Lord Chancellor if found guilty of a criminal offence or misconduct, eg. in 2015, 4 judges lost jobs for watching porn at work
4) Pay- rises for judges not decided by politicians, Parliament cannot use generous pay rises to gain support with judges money from ‘Consolidated Fund’, independent pay review body not HoC
5) The offence of ‘contempt of court’- ministers shouldn’t criticise court rulings, MPs, peers, ministers, media shouldn’t try to influence court rulings, ‘sub judice’ (under judgement), rule-media, ministers, MPs are not allowed to comment on cases being heard
6) Autonomy of legal profession- judges appointed from barristers or solicitors for professionalism and not political leanings, lawyers and judges not trained by state- crucial in guaranteeing independence of profession
-Democratic state= judicial independence from executive branch
-Authoritarian state= judicial interference from executive branch
-Judicial independence means that the actions and decisions of judges should not be influenced by other branches of government
-In a liberal democracy, the authority of the law stems from the fact that it’s interpreted in a non-political manner
In authoritarian states, the judiciary becomes an instrument of the executive body- eg. Nazi Germany
-politicians sometimes breach ‘sub judice’ rule, ministers criticise judiciary, eg. May 2010 deportation of terror suspect Abu Qatada to Jordan
Hain (2018)- naming of Sir Philip Green as being subject to legal action despite court order that his name shouldn’t be disclosed
-Politicians try to interfere with sentencing by devising minimum sentences for certain crimes which limits judicial autonomy, 3rd time trafficking class A drug= 7 year minimum, firearms offence=5 years minimum
-Independent Judicial Appointments Commission only makes recommendations to the Justice Secretary and PM so still big overlap between judiciary and executive which CRA hasn’t removed

Question 27

How is there judicial neutrality?

Answer 27

Judges must not allow any political, social, religious or ethnic bias to influence their judgements
-It’s maintained in practice as some argue that judges are biased against working class, women and ethnic minorities because judges are typically white, privilged, upper class, Oxbridge educated etc. with evidence to support being
1) average sentencing for West Indian male is 8 months longer than for whites who committed the same offence
2) more blacks in prison than whites
3) judges have, in past cases, put too much trust in police evidence
4) judges can be too eager to support government
5) British courts shows an unwillingness to prosecute soldiers accused of war crimes in Iraq
However:
can’t generalise apparent lack of judicial neutrality, many cases of judiciary being very good at protecting the weakest and most vulnerable in society, suggesting judges are not biased against poor and ethnic minorities
Consider that:
1) Judges have often stood up for vulnerable groups like asylum seekers
2) Judges have defended terror suspects on numerous occasions like Abu Qatada
3) Judges awarded a tough sentence for LibDem minister Chris Hushne in 2013 (his wife took speeding points for him), former MP Charlie Elphicke was given a 2 year jail sentence for sexual assault on 2 younger women, Eric Illsley and Elliot Morley were sent to prison after 2009 expenses scandal
-judicial neutrality means political restrictions on judges, judges aren’t public figures, media ensures a degree of neutrality, Court of Appeal can order a retrial if bias has occured, judges have to explain their reasoning in detail

Question 28

What are the 3 strands of the rule of law?

Answer 28

1) No one can be punished without a trial- not always maintained in practice, eg. terrorist suspects have been subject to a range of punishments without a trial under measures passed since 2001, including indefinite detention, the imposition of control order and freeing of their assets, Daniel Khalife escaped prison and was punished

2) No one is above the law and all are subject to the same justice- but some like the monarch, foreign ambassadors, and MPs are above it, some MPs even tried to use parliamentary privilege as a way of ending legal proceedings taken against them over their expenses during 2009 scandal, Harry Dunes was killed by Anne Sacoolas but she wasn’t held accountable until late as she had diplomatic immunity from US

3) The general principles of the constitution (eg. personal freedoms) result from judges’ decisions rather than from parliamentary statute- decisions of judges, eg. case/common law, define UK’s constitutional arrangements, but parliament remains sovereign and statute law reigns supreme, any legal precedent can be overturned by a simple Act of Parliament, Rwanda Bill rejected by Supreme Court, government pledged to amend act to apply with law, it didn’t work with HRA 1998

Question 29

What is politicisation?

Answer 29

Where individuals or institutions traditionally seen as being above the political fray are dragged into it. Eg. the way in which UK judges were drawn into areas of political controversy in the wale of the HRA 1998, limits neutrality and independence

Question 30

What legislation is seen as the most at risk of being politicised by the Supreme Court and what decision did they make in 2023 that used this legislation?

Answer 30

HRA 1998, eg. Abu Qatada (SC being political)
Rejected Rwanda Bill as it didn’t comply with HRA
Didn’t allow Johnson to prorogue Parliament in 2019- unlawful

Question 31

Can members of the Supreme Court uphold the Equality Act?

Answer 31

No as members of Garrick Club (men only), eg. Michael Gove

Question 32

What is judicial review?

Answer 32

Higher courts (like Supreme Court) clarify the meaning of the law as opposed to simply applying the letter of law

Question 33

Is judicial review needed?

Answer 33

Yes because it fixes the poor legislation and decision-making so the electorate can trust the government more.
Public law = democracy so courts are often all that can control the abuse of executive power, our political system has poor legislation and decision-making but ministers trying to change that, opinion polls showed 6/7 respondents trust judges but 1 out of 6 back anyone in government, judicial review corrects this (Guardian article)

Question 34

What is ‘judicial review’?

Answer 34

The process by which judges review the actions of public officials or public bodies in order to determine whether or not they have acted in a manner that is lawful

Question 35

What is common law and how does it apply to judicial review?

Answer 35

The body of legal precedent resulting from the rulings of senior judges (aka judge-made law)

Question 36

What does ultra vires mean?

Answer 36

Beyond the authority granted to a minister/government officer in law (can be determined by judicial review)

Question 37

How was EU law integrated into the UK whilst it was a member? What court was higher than UK’s SC when part of EU?

Answer 37

Under the European Communities Act 1972 the UK incorporated the Treaty of Rome into UK law
European Court of Justice

Question 38

What was the Factortame case?

Answer 38

The case took its name from a Spanish-owned fishing company (Factortame limited) which challenged the legality of the Merchant Shipping Act 1988 under EU law
EU law is above UK law

Question 39

What court does the HRA allow citizens to use?

Answer 39

European Convention on Human Rights cases through UK courts. It allows citizens to pursue cases under the ECHR through the courts as opposed to having to go directly to the ECHR in Strasburg

Question 40

What does the HRA allow the SC to declare about laws?

Answer 40

As HRA is based on the Council of Europe’s ECHR, rather than on EU law, it’s not superior to parliamentary statute. SC can only issue a declaration of incompatibility where a parliamentary statute appears to violate the rights guaranteed- and parliament isn’t obliged to amend the offending statute. But HRA has a ‘persuasive authority’ that has enhanced protection of individual rights in UK

Question 41

Does parliament have to listen to SC?

Answer 41

Doesn’t have to follow HRA, can make Acts of Parliament (laws) which go against or are incompatible with HRA. The courts still have to apply the Acts, but some courts, eg. Court of Appeal, can say that the law breaches HRA (declaration of incompatibility). This may mean that the law is changed in the future

Question 42

How is common law argued to be a ‘quasi-legislative’ power?

Answer 42

There’s been a blurring of the traditional distincition between those politicians who make the laws and judges who apply it

Question 43

What argument is made for unelected justices? What country politicises their judges through elections and political appointments?

Answer 43

The UK SC has no more power than the Appellate Committee of the HoL. Rare for those in senior judicial positions worldwide to be elected to office.

Question 44

What are the three sources of authority?

Answer 44

1) Traditional authority- based on established traditions and customs
2) Charismatic authority- based on the characteristics of the leaders
3) Legal-rational authority- granted by a formal process, like an election

Question 45

Where does the UK SC source its authority from?

Answer 45

The judiciary

Question 46

How has the SC enhanced its authority in recent years? What Act of Parliament does this relate back to?

Answer 46

-A more independent and less opaque appointments process than that which applied to the Law Lords
-A clearer separation of powers accompanied by a clear physical separation between legislative and judiciary
-An organic process of ‘demystification’- with public visits, a clear website and enhanced coverage in the mainstream media

Question 47

What has been the impact of Brexit on the UK SC?

Answer 47

ECHR was established in 1959 to hear cases arising under the 1950 ECHR. It was incorporated into British law under the HRA and is problematic for those who see it as a threat to the independence and sovereignty of the Westminster Parliament. ECHR wasn’t established by EU but by the Council of Europe. Therefore leaving the EU doesn’t, in itself, remove the UK’s obligations under ECHR, any more than repealing the HRA would. The only way to remove the UK from jurisdiction of ECtHR would be to withdraw from ECHR itself- unthinkable as almost all European status are current signatories

Question 48

What are the ECHR and ECJ?

Answer 48

ECHR- Established by the Council of Europe, hears cases brought under the ECHR, based in Strasbourg but not an EU institution, still part of
ECJ- the supreme court of the EU, hears cases arising under EU law, based in Luxemburg, left

Question 49

What is Brexit and the SC’s power under EU law?

Answer 49

SC power increased as no longer had ECJ above them
Brexit involved withdrawing from Treaty of Rome, meaning EU laws no longer take precedence over UK law and ECJ no longer has jurisdiction over UK. Impacts on work of UK SC as a proportion of the court’s caseload up to 2021 related to EU law and the removal of a court that’s superior to SC could be seen as enhancing the SC’s status and authority.
HRA made available a remedy for breach of ECHR in UK courts, can issue a declaration of incompatibility, cases can still go to ECJ about interpretation of citizens’ rights provisions but extremely specific, ECJ rarely used