Supreme Court

Question 1

What is the definition of Supreme Court?

Answer 1

The highest court in the UK political system

Question 2

What is the definition of judicial neutrality?

Answer 2

The principle that traditional be influenced by personal political opinions, and should remain outside of party politics

Question 3

What is the definition of judicial independence?

Answer 3

The principle that Jaji should not be influenced by other branches of government, particularly the executive

Question 4

What is the definition of judicial review?

Answer 4

The power of the judiciary to review, and sometimes reverse actions by other branches of government that breach the law that are incompatible with human rights act 1998 

Question 5

What is the definition of ultra vires?

Answer 5

Means ‘Beyond the powers’ therefore an action that is taken without legal authority when it requires it

Question 6

Constitutional reform act, 2005
——————————————-
What act established the Supreme Court and and prior to the act where was the SC situated?

What roles does the lord chancellors have after the CRA 2005 and what roles did he have prior to the act?

Who is now head of the judiciary and what is the role of the speaker in HOL?

How does the Lord Chancellor receive candidates for SC?

What body can select vacancies for lower courts but not for SC?

How is a justice removed and why are they removed and what gives them security?

Has the CRA 2005 codified SC in law, and what does it promote?

Answer 6

Established after the constitutional reform act 2005 and came into effect in 2009. Previously the court had been situated in the House of Lords which meant that a judiciary was within the legislature.

Constitutional reform act 2005, establish:

That the Lord Chancellor and justice secretary was moved from the lords to the commons. Prior to the act the Lord Chancellor used to reside in all three branches as Head of court, presiding officer in the HOL, position in the cabinet.

The Lord Chief Justice is now head of the judiciary alone. The speaker is the presiding officer in the Lords who is elected member by other peers.

If a vacancy appears, a special commissioner of lawyers is set up to review candidates, and recommend one to the Lord Chancellor

The judicial appointments commission removes political interference by selecting candidates when vacancies appear for a position in the lower courts. However he does not select justices of the Supreme Court.

Justices can only be removed by a vote in both houses of Parliament and for a misconduct however, the justice has security of tenure as retirement age is set to 75.

The constitutional reform act 2005, codified the independence of the SC into law, and establish clear separation of the judiciary from the executive and legislature.

Question 7

Composition of the Supreme Court

How many justices are there? What is the name of the Lord chief justice? How many men and women are there in the SC?

How are they appointed?

Answer 7

12 Chief justices.

Lord Chief Justice/president = Dame Sue Carr

There is 11 men and 1 woman

Special commission created when there is a vacancy that hears applications from candidate. The candidate must have worked in judicial high office for at least two years or for 15 years as a barrister or solicitor. President of the court chairs, the commission and appoints another justice to sit on the commission from the bench. One judicial appointments commission representative sits on the commission. He is responsible for appointing justices to lower courts. Minister for Justice may ask the court to reconsider the appointment or can reject the candidate out right however, this power has never been used.

Question 8

What is the role of the Supreme Court?

Answer 8

Its role is to determine whether the law is being applied correctly in cases and followed equally by everyone, including those in government. They hear cases of constitutional importance and decides on cases about whether other branches of government have acting within exceeded their powers, set out in law

Question 9

What powers does the Supreme Court have?

What does judicial review mean?
Can SC strike down parliamentary legislation?
If gov is ultra vires what can SC issue, what happens if statue is incompatible with HRA?
What does the ECHR set out?
Prior to codifying ECHR into HRA were did citizens take their cases?
Now that the the ECHR is Codfied as HRA what does this mean for citizens and the judiciary?

Answer 9

Judicial review- sc decides whether ministers or public bodies have exceeded their powers and have acted ultra vires.

They cannot strike down parliamentary legislation due to sovereignty

They can issue declarations of incompatibility with the human rights act 1998. This means they will review acts of Parliament and decide whether they are compatible or not with the human rights act. If they aren’t, they can recommend that Parliament change the law they do not have the power to enforce this decision , however, the majority of declarations lead to laws being changed as otherwise the government would not be acting in a way that breaks its international agreements and acts of statute

ECHR It’s sets out basic rights of citizens that all countries who signed have to up old.

If a person wanted to defend their rights under ECHR, they had to take that case to the European Court of human rights. However, this was expensive and led to the accusation of weak rights protections in the UK therefore in 1998 Blair’s government codfied the ECHR into British statute law, which became the human rights act, 1998.

This now means that citizens are able to defend their rights from the ECHR in British courts. This widen the capacity of the judiciary to protect civil liberties and check the powers of the executive. The act has a section which ensures that all future statue law must be compatible with the human rights act 1998.

Question 10

What powers does the SC have? - SC uses its judicial review powers in 2 ways based on HRA

Answer 10

1) Actions of Public Authority

It’s unlawful for a public body or gov departments to act in a way that is incompatible with the ECHR.

If ruled unlawful the court can cancel a decision, send the decition back to the authority to make again, and award compensation where necessary and just.

AM Zimbabwe v Secretary of State for the Home Department 2020 - the SCOTUK ruled his appeal should be heard in a tribunal under Article 3 as he was HIV positive and would not be able to access the required medication if deported this case did not mean that he was entitled to stay in the UK, but that he was entitled to appeal and deportation based on how his life may be limited due to his condition if he was deported. this case did not mean that he was entitled to stay in the UK, but that he was entitled to appeal and deportation based on how his life may be limited due to his condition if he was deported.

2) Declerations of incompatibility

if legislation from Parliament cannot be interpreted as compatible with the human rights act, the car will issue a declaration of incompatibility under section 4 of the human rights act. The declaration does not mean that I will automatically be changed message that the law is not compatible and should be changed open till 2022, There have been 46 declarations of incompatibility made tender over 10 by appeal which leaves 36 declarations to are currently being appealed which means 34 have been addressed or being considered by the government

in Steinfeld and Another v Secretary of State for Education 2017 - The court issued a declaration based on the 2004 Civil Partnership Act not allowing opposite-sex couples to enter the civil partnership as a breach of the human rights act. The government amended the legislation in 2019, allowing opposite sex couples to enter a civil partnership.

Question 11

Key debate is the supreme court independent and neutral?

INDEPENDENCE
Theme: fusion of the powers - yes it’s independent

Theme: fusion of the powers - No its not independent

Answer 11

Yes - CRA 2005 established the independence of the court and that all members of the court must be independent from political influence as it set out independent appointment process JAC for lower courts and Special Commisions for SC

Yes - SOP - by removing judiciary from the from the House of Lords gives them greater independence over constitutional issues and Lord Chancellor role removed from other two branches.

Lords chancellor and Justice secratory sit in the executive they oversee appointments and administration of the courts

The Lord chief justice sits in judiciary and is president of the courts of England and Wales

The Lord speaker presides in the HOL in the legislature and is elected member.

Yes - security of tenure means justices cannot be sacked for making decisions against the executive and the mandatory retirement age is 75.

No - The role of the judiciary was fused for a long time before the act was created as The court use to reside in HOL as law Lords this could mean there could be political influence on devotions made on cases 2005 and before.

No - Lord chancellor held a position in all 3 branches of the gov

No- justices were appointed by the PM making them more political appointments and open to influence.

Question 12

Theme - interactions with elected branches

INDEPENDENCE

Yes it’s independent?
No it’s not independent?

Answer 12

Yes- conventions and show greater independence. The government should not use this contact with the judiciary to influence decisions and minister should exercise restraint and decisions. Sub-judice mean that parliament is prevented from debating matters currently in front of the court to avoid accusations of interference.

No - Separation of the powers leads to a weaker understanding of positions from branches, as they do not communicate/ work together ministers are increasingly willing to criticise decisions from the court and accuse them of impartiality after the court rule that parliament must be able to vote on triggering article 50 Johnson criticise the government interference with the Brexit process as an unelected branch. The court preemted this response by writing in the decision that their ruling was not about Brexit but matters of law and processes within Parliament. After the court ruled that Johnson’s government proroging of Parliament was unlawful. He and others criticised the decision made by the court.

Question 13

Theme - social representation

NEUTRAL
yes it’s neutral?
No, it’s not neutral?

Answer 13

Yes - when Lady Hale joined the bench in 2004, she was the only female and state educated judge. By the time she stepped down she had been president of the court for three years and was one of the three female justices the

Yes - JAC creation could be said to have improved neutrality as a proportion of women recommended for the High Court increase from 13% to 29% in 2018, the proportion of BAME candidates also increase from 2% to 6% over the same timeframe.

Yes - All cases have an explanation of how they came to their decision, which must be grounded in law and evidence to avoid criticism of bias.

No- currently all justices. Went to Oxbridge and a white. 11 justices are male. This implies a bias of past experience which affects case laws decisions.

The left criticised the lack of social representation in the judiciary and argues that this has led to decisions being made against minority groups.

No - The case against prenup is being a legally impossible arrangement seem to exemplify this as all male members of the bench voted in favour of the wealthier individual in the marriage, and the only female Lady hale voted against as prenup tended
to discriminate largely against women.

No - The right, however, criticises the social characteristics of the judiciary for holding an explicit liberal bias. Due to their education. They argued that the court favours individual rights over the public’s interest. This was seen through Brexit and the terror rulings from the court.

Question 14

Belmarsh case

What are the facts of the case?
Why is the case significant?
What was parliament responded?

Answer 14

After 9/11 Parliament passed the antiterrorism crime in security act 2001, which allowed indefinite detention without trial of foreign suspects of terrorism.
The court will the 81 that the detention under the ATCS act was incompatible with article 5 rights and liberties and 14 protection against discrimination of the human rights. Act of the act only apply to foreign nationals, not British.

This case was significant as parliament could have ignored the judgement, declaring indefinite detention of foreign Nationals, but it didn’t the government repealed part 3 of the 2011 act replaced with the prevention of terrorism act 2005 which is a system of control orders.

even though Parliament chose not to ignore the judgement, for suspected, international terrorists had to remain in prison until new legislation was written. Since the principle of Parliamentary sovereignty makes it impossible for the court to strike down primary legislation. Therefore, the human rights act had provided a moral rather than legal check on the legislature .

Question 15

Treasury v Mohammed Jabar Ahmed and others 2010

what was the case about?
what was the high court’s decision? What was the Supreme Court’s decision?
What was Gordon Brown’s governments response?
What can this case be used for?

Answer 15

The issue with this case was whether the government had acted ultra vires when freezing, the assets of suspected terrorists.

The High Court ruled that the acid breathing order was ultra vires.

The government put forward an appeal to the Supreme Court. They also decided that the HM Treasury had acted ultra virus and that it should be overturned by 6-1 as it was unreasonable, that the order could not be contested in court

Gordon Brown government formulated legislation to deal with this issue in the terrorism as it freezing act 2010. This bill proposed to give the government power to freeze assets of suspected terrorists. The Bill went through all the legislative stages within 4 days

 Gordon Brown government formulated legislation to deal with this issue in the terrorism as it freezing act 2010. This bill proposed to give the government power to freeze assets of suspected terrorists. The Bill went through all the legislative stages within 4 days

This case can be used for judicial review and shows Parliamentary sovereignty

Question 16

Millie v Secretary of State for Exiting the European Union 2017

what was the facts of the case?
What was the issue of the case?
what was the High Court decision? What was the Supreme Court decision?
What was the significance of this case?

Answer 16

The government had to trigger article 50 without Parliamentary consent believe in the mandate came directly from the referendum result and therefore fell within the governments role prerogative powers. However, an activist Gina Miller bought a case that argued parliament had to consent to trigger article 50.

The issue was whether having joined the EU through statute law, meant the government could withdraw Britain from the EU using Royal prerogative powers

the High Court ruled that as Britain had joined the European Union via the European communities act therefore government had to seek parliament’s approval to reverse that decision.

The Supreme Court upheld the decision of the High Court and stated that consent was required from Parliament to trigger article 50. The vote was 8-3.

The decision by the Supreme Court slowed down the process of triggering article 50 but cannot straight down acts of statute in national agreement however, its constitutional significance was that when treaties had been entered into by statute law, they could only be repealed through statute law.

Question 17

unison v Lord Chancellor 2017

what was the Supreme Court decision on the facts of the case?
What was the significance of the case?
Does this case highlight the importance of access points?

Answer 17

The courts decision was that the fees are there in 2013 was ultra vires as it was unlawful under statute law because it prevented access to justice as there was a decline in cases brought by 79% over three years after the orders were bought in. which is inherent according to the rule of law.

The significant was that the governments justice minister at the time Dominic Raab said that the government would stop taking fees immediately and would voluntarily reimburse claimants dating back to 2013. A total of 32 million the courts acted as a check on the unlawful actions of the ministry of justice by using its power of judicial review. they could not strike down the fees and order 2013 which limits their power.

It can also be said that the case highlights the importance of access points as the court helps pressure groups fight for the rights of citizens.

Question 18

Steinfield Leiden v Home Secretary, 2018
what are the facts of the case?
What is the issue of this case?
what was the high court decision? What was the Supreme Court’s decision?
what is the significance of this case?

Answer 18

Hetrosexual couples argued that the civil partnership act was not compatible with the European convention of human rights and the human rights act 1998.

Issue was by the precluding heterosexual couples from entering into a civil partnership. What is discriminatory and non-compatible with the human rights law

The High Court rejected the appellants argument they also dismissed their claim.

However the Supreme Court unanimously ruled that the current procedure was ultravirus they found that all the precluding heterosexual couples from a civil partnership had originally been legitimate and proportionate. This position was no longer possible to maintain now that the same-sex couples had equal marriage rights. The court decided that the elements of the civil partnership act precluded it as an option for same-sex couples were incompatible with article 8 of the ECHR

this case was significant as the government subsequently amended the civil partnership act to allow heterosexual couples to enter into a civil partnership. This example is useful as it shows the Supreme Court recognising the deficiency of a statute law. The declaration that it was incompatible with the ECHR put pressure on the government to amend this which they subsequently did .

Question 19

Millie v prime minister 2019

what was the facts of the case?
What was the two issues of the case?
what was the High Court decision? What was the Scottish courts decision?
What was the Supreme Court decision?
What was the significance of this case?

Answer 19

Boris Johnson asked the Queen to prorogue parliament early so that his Brexit deal would not have to be debated this we put pressure on Parliament to accept a deal before the 31st of October.

The issue was whether the prime minister had advised the Queen to prod Parliament to stifle Parliamentary scrutiny this action would be ultra vires. Secondly, whether a political decision was subject to scrutiny by the courts.

The High Court ruled that the case was non justiciable meaning it was a political matter that was not within their jurisdiction to make a judgement on. However, the Scottish courts of session unanimously found prorogation as unlawful.

The Supreme Court decision found that Boris Johnson‘s prorogation of Parliament had been unlawful they stressed that the motives for the government actions were not central to the issue. They said that the fact that the prorogatiom had stifled Parliamentary debate meant that the effect of the fundamental democracy was extreme.

this case with significant as the speaker of the House of Commons, John Bercow immediately announced that he was preparing for a resumption of the Parliamentary session. The wider constitutional issue was that the case showed the Supreme Court willingness to adjudicate on issues that fell firmly within the PM Royal preogrative powers they found that is these powers undermined the fundamental tenants of the representative democracy they may be found ultra vires. This set an important legal precedent for the use of Royal prerogative powers in the future.

Question 20

Key Debate - Does the SC have too much power?

Theme - Judical Review
Yes?
No?

Answer 20

The courts power of review can quash actions of gov ministers of there ruled ultra birds. This gives the public the ability to challenge the lawfullnes of the actions of the gov. This means decisions by the SC can alter the way the gov behaves eg the Unison 2017 case led to gov stopping the Fees Orders and reimbursing those they had been used against. Another case was Miller v PM

Court rulings must always be based in law and they make decisions about what the public bodies are. The executive has acted within the powers granted to it by statues. This is important for Parliamentary sovereignty. Jabar Ahmed v Treasury 2010 order. The freezing of suspected terrorists assets was ultravirus. The government responded by Passenger terrorist act 2010, giving the Treasury the powers previously ruled on the full parliament had the right to determine what rights could be restricted legally the car acted within its remix by determine actions, but not initiating the change to the lock SCOTUK bound by the fact that it can’t choose cases to hear, cases must be brought to it

Question 21

Theme HRA
Yes?
No?

Answer 21

SCOTUK can declare Acts as incompatible with the HRA however they cannot force Parliament to change the law but the declaration encourages Parliament to change or repeal the law because the gov would be breaking international agreements such as the ECHR for example the Belmarsh case judgement of incompatibility was criticised highly by the go but they still repealed the controversial part of the law replacing indefinite detention with control orders which was passed in subsequent Parliament legislation
Showing one unelected branch has influence on both elected branches

Declarations of incompatibility still work within Parliamentry sovereignty the SCOTUK cannot enforce its decisions of an only highlight where laws are incompatible with the HRA and recommend a change like in the Belmarsh case and Steinfield Keiden case where after a deceleration of incompatibllity the gov changed the law on civil partnership to include same sex couples therefore paeliamentry soverighnty still lies with Parliament

Question 22

Theme - activism vs restraint
Yes?
No?

Answer 22

The courts recent activist decisions have meant, they reducing their traditional role into a more political one as the owner elected, and therefore unaccountable court should not be able to have a say on the decisions of democratically elected officials, especially when they enacting will of the people through a majority/mandate for example, Article 50 and the prorogation case as well as recent examples on asylum and deportation have seen the court become more politically involved. The court regularly allows appeals based on deportation to be taken to tribunal. The left critics point to the lack of diversity. What’s the right point to a liberal bias due to education.

The SCOTUK is not becoming more activist it’s fulfilling its role as a check on the powers of the executive and legislature, which is vital given the fusion of powers in the UK, which could lead to executive dominance and a collective dictatorship of the Legislature, especially given most parties win with the majority due to first past the post. when passing the HRA Parliament gave the court the role and power to decide where the future laws were compatible with the aqsa as it would be inappropriate for Parliament to do so in a democracy. The car also has a vital role in answering constitutional questions which had been prevalent with the UK, leaving the EU Parliament gave the court the role and power to decide where the future laws were compatible with the aqsa as it would be inappropriate for Parliament to do so in a democracy. The court also has a vital role in answering constitutional questions which had been prevalent with the UK, leaving the EU. in the article 50 prorogation cases, the court decisions were not political political base in law and boats are to ensure that parliament has been given the authority. It deserves in the political system during the process of Brexit lady hail stressed after the article 50 case that the decision wasn’t about triggering article 50 by insuring that Parliament was given the right to debate the issue and have a vote as it’s sovereign.

Question 23

can human rights cases in the UK be taken to the ECHR?
Does the UK Parliament have to comply with the decisions of the ECHR?
give 2 examples og policy where the government has ignored the decision of the ECHR?

Answer 23

although the UK has left, the EU cases about human rights can still be taken to the ECHR in Strasbourg. However, the courts in the UK are parliament to not have to take the judgements on board recently the governments Rwanda policy was stalled due to the decision of the ECHR however, they still pushed this policy through Parliament despite being incompatible with the ECHR

for example, votes for prisoners, the ECHR ruled in Hirst v Uk 2004, that prisoners should be given the right to vote and withholding that right is a breach of the ECHR, however, the UK executive and Legislature has not implemented this ruling