supreme court Flashcards
What did CRA 2005 establish
📜 What did the CRA 2005 establish?
The CRA 2005 separated the roles of the Lord Chancellor, who previously resided in all three branches of government (judiciary, executive, and legislature), violating judicial independence.
The Lord Chancellor’s role combined with the Justice Secretary, and moved from the House of Lords to the House of Commons.
The Lord Chief Justice became the head of the judiciary, taking sole responsibility for judicial matters.
The presiding officer in the Lords became the Speaker of the House of Lords, who is elected by peers.
⚖️ Judicial Independence:
The Judicial Appointments Commission (JAC) removed political interference in the judicial selection process.
The JAC selects judges for lower courts, but does not select Supreme Court justices.
A special commission reviews candidates for high judicial posts and recommends one to the Lord Chancellor if a vacancy arises.
🛡️ Security of Tenure:
Justices can only be removed for misconduct through a vote in both Houses of Parliament.
They cannot be removed due to their decisions made on the bench.
This gives them security of tenure, ensuring their independence.
📜 Key Outcomes:
The CRA 2005 codified the independence of the judiciary and established a clear separation between the judiciary, executive, and legislature.
What’s the composition of the Supreme Court?
2 Chief Justices
Lord Chief Justice/President – Lord Reed, previously Lady Hale
10 men, 2 women (April 2024)
How are they appointed?
1.Special commission is created when there is a vacancy (usually when someone retires at 75) that hears applications from candidates
2.Must have worked in judicial high office for at least 2 years or for 15 years as a barrister/solicitor
3.President of the Court chairs the commission and appoints another justice to sit on the commission from the bench
4.One JAC representative sits on the commission (responsible for appointing justices to lower courts than the Supreme Court)
5.Minister for Justice may ask the Court to reconsider their appointment, or can reject the candidate outright however this power has never been used (questionable whether they would use this power as they’d be saying they had no confidence in the person who is a sitting judge)
what is the Role of the SC
he Supreme Court doesn’t rule on ‘regular’ cases of whether the law has been broken and if someone if innocent/guilty. Instead, it’s role is to determine whether the law is being applied correctly in cases and followed equally by everyone, including those in government. This means cases it hears have already been heard in lower courts. It also hears cases of constitutional importance and decides on cases about whether other branches of government have acted within or exceeded their powers set out in law.
what are the Judicial Review Powers of the Supreme Court
Ultra vires - The court decides whether ministers or public bodies (like Ofcom, Ofsted) have exceeded their powers and acted in ultra vires. They may have acted without legal authority for their actions. Governments/Public body actions are suspended until they act within the law.
Actions of public authority or declarations of incompatibility (with the Human Rights Act) – the court will review acts of parliament and decisions by the government and decide whether they are compatible or not with the HRA. If they aren’t, they can recommend that Parliament changes 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 be acting in a way that breaks its international agreements and acts of statute, which signifies that declarations of incompatibility do hold some significance.
Steinfeld and Keidan 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 a civil partnership as a breach of the HRA.
how is the court independent though fusion vs separation
Even before the CRA – pay and tenure ensured independence and neutrality as the executive/legislature could not determine pay or job security of justices.
CRA 2005 established the independence of the court and that all members of the Court must be independent from political influence.
Independent appointments process (JAC for lower courts, special commission for Supreme Court)
separation of the powers – by removing judiciary from the Lords gives them greater independence over constitutional issues and Lord Chancellor role removed from other two branches.
Non-political body determines the pay of judges (However, these measures must be voted on in Parliament and are not always accepted, seen during times of austerity)
Security of tenure – cannot be sacked for making decisions against the executive. Mandatory retirement is 75
how is the court not independent though fusion vs separation
The role of the judiciary was fused for a long time.
The Court used to reside in the HoL as the Law Lords
Lord chancellor held a position in all 3 branches of the government.
Justices were appointed by the PM making them more political appointments and open to influence
how is the court not independent in interactions with elected branches
Separation of the powers leads to weaker understanding of positions from branches as they do not communicate/work together
Ministers are increasingly willing to criticize decisions from the court and accuse them of impartiality.
After the court ruled that parliament must be able to vote on triggering article 50, Johnson criticized the courts interference with the Brexit process as an unelected branch. The court preempted this response by writing in the decision that their ruling was not about Brexit but matters of law and process within parliament.
After the court ruled that Johnsons governments proroguing of parliament was unlawful, he and others criticized the decision made by the court
how is the court independent in interactions with elected branches
Conventions ensure greater independence. The government should not use its contacts with the judiciary to influence decisions and ministers should exercise restraint when commenting on decisions.
Sub judice means rule means that parliament is prevented form debating matters currently in front of the court, to avoid accusations of interference
how is the court independent in Restraint v activism
Judges should exercise judicial restraint – where they defer to the actions of the elected branches to ensure they do not became too involved in the political process.
The Court refused to hear a case on assisted suicide law changes in 2014.
how is the court not independent in Restraint v activism
Judges should exercise judicial restraint – where they defer to the actions of the elected branches to ensure they do not became too involved in the political process.
The Court refused to hear a case on assisted suicide law changes in 2014.
case: Miller vs Secretary of State for Exiting the European Union (2017)
📜 Background:
In June 2016, Britain voted in the EU Referendum to leave the European Union.
The government planned to trigger Article 50 to formally start the process of leaving, without seeking parliamentary consent, arguing the mandate came from the referendum.
Gina Miller, an activist, brought a case arguing that Parliament must consent before triggering Article 50.
⚖️ Issue(s) of Law:
Could the government use royal prerogative powers to withdraw from the EU, given that Britain joined the EU through statute law (European Communities Act 1972)?
🏛️ High Court Decision:
The High Court ruled that since Britain joined the EU through the European Communities Act (1972), the government must seek Parliament’s approval to begin the process of leaving the EU.
This decision reinforced the importance of parliamentary sovereignty over the executive.
case: Treasury v Mohammed Jabar Ahmed and others (2010)
📜 Background:
Three brothers were investigated for suspected terrorist links but had not been charged with any terrorism-related offenses.
On 2nd August 2007, the HM Treasury informed them they were designated under a United Nations Terrorism Order, citing links to Al-Qaeda.
The Treasury imposed an asset freeze to prevent them from continuing to fund terrorist groups.
The brothers denied any involvement with terrorism.
⚖️ Issue(s) of Law:
Whether the government acted ultra vires (beyond its powers) by imposing an asset-freezing order on suspected terrorists without criminal charges.
🏛️ High Court Decision:
In April 2009, Judge Collins ruled the asset freeze was ultra vires and quashed the orders.
⚖️ Supreme Court Decision:
The government appealed, but the Supreme Court (6-1 decision) ruled that HM Treasury had acted ultra vires.
The court emphasized that asset freezing orders could not be imposed without legal challenges or a formal criminal charge.
📜 Significance:
Judicial Review was upheld, showing parliamentary sovereignty in limiting executive power.
The government quickly passed the Terrorist Asset-Freezing Act (2010) to grant power to freeze assets in such cases.
The bill passed rapidly through Parliament, demonstrating the Parliament’s will to allow what it viewed as proportionate action.
‘Belmarsh’ Case: A v Secretary of State for the Home Department (2004)
📜 Background:
After 9/11, the Anti-Terrorism, Crime and Security Act 2001 allowed indefinite detention without trial of foreign terrorism suspects.
Several individuals were detained at Belmarsh prison under this act.
⚖️ Court Decision:
The court ruled 8-1 that indefinite detention under the ATCS Act violated Articles 5 (right to liberty) and 14 (protection against discrimination) of the Human Rights Act (HRA).
The Act applied only to foreign nationals, not British citizens, and allowed detention without charge.
Lord Hoffmann argued the measures were excessive and disproportionate, stating terrorism did not threaten the life of the nation in the same way as WWII.
Lady Hale argued the law lacked logic, stating if detention wasn’t necessary for nationals, it shouldn’t be for foreigners either.
📜 Significance:
Parliament did not ignore the judgment and repealed part 3 of the 2001 Act, replacing it with the Prevention of Terrorism Act 2005 (control orders).
Detainees were released and placed under supervision.
Although Parliament responded to the ruling, the principle of parliamentary sovereignty meant the court could not strike down primary legislation—the HRA provided a moral check, not a legal one.
case: UNISON v Lord Chancellor (2017)
📜 Background:
In 2013, the government introduced a Fees Order transferring some employment tribunal costs to the claimant.
The Fees Order could cost up to £1600 and was intended to deter unmeritorious claims and encourage early settlements.
However, government statistics showed a 79% decline in cases brought after the introduction of the order over three years.
⚖️ Court Decision:
The court ruled the Fees Order was ultra vires (beyond the government’s powers) and unlawful under statute law.
The order prevented access to justice, which is a key principle of the rule of law.
📜 Significance:
The government, under Justice Minister Dominic Raab, agreed to immediately stop fees and reimburse claimants from 2013 onwards (around £32 million).
The case highlighted the court’s role in judicial review as a check on the Ministry of Justice’s unlawful actions.
It also emphasized the importance of access to justice for pressure groups advocating for citizens’ rights.
Case: Secretary of State for Business and Trade v Mercer (2024)
📜 Background:
Under UK law, workers are protected from dismissal for striking, based on the European Convention on Human Rights (ECHR) and the Human Rights Act (HRA).
However, there are loopholes. In 2019, Mercer was suspended from her charity job during planned strike action.
UNISON took up her case after it was appealed to the Supreme Court (SC).
⚖️ Court Decision:
The Supreme Court ruled that Mercer’s suspension was unlawful.
The law allows employers to impose sanctions short of dismissal, which the court deemed unfair and unreasonable.
The Court stated this practice legitimises unfair conduct by employers.
📜 Significance:
Judge Ingrid Simler ruled the practice put the UK in breach of the ECHR.
She clarified that Parliament could choose to legislate on this issue but retained sovereignty over the decision.
Despite the government’s attempt to dismiss the case, the ruling pressured Parliament to reconsider existing laws.
The Court referenced the ‘right to strike’ 18 times, indicating growing importance of the issue, with the Court likely considering further union-related cases.
This case illustrates the Court’s role in protecting rights and pressuring the government to amend laws incompatible with the ECHR.
Case: Miller vs Prime Minister (2019)
📜 Background:
Prorogation: The process of ending a parliamentary session, advised by the Prime Minister, but formally executed by the Queen.
On 28th August 2019, Prime Minister Boris Johnson advised Queen Elizabeth II to prorogue Parliament for five weeks, citing the need to conclude a long parliamentary session.
The move raised suspicions that the government aimed to stop MPs from debating Brexit and pressurise them to accept a deal before the 31st October Brexit deadline.
⚖️ Issue of Law:
Was the Prime Minister’s advice to prorogue Parliament to limit parliamentary scrutiny ultra vires?
Was the decision to prorogue justiciable (subject to court review), or was it a purely political decision?
⚖️ Court Decisions:
High Court: Found the case non-justiciable, meaning it was a political matter beyond the court’s jurisdiction. However, the Scottish Court ruled the prorogation unlawful.
Supreme Court: In a unanimous ruling, found that Boris Johnson’s advice to prorogue Parliament was unlawful.
The ruling emphasized that proroguing Parliament stifled parliamentary debate, which undermined democracy, and was therefore unjustifiable.
📜 Significance:
John Bercow, Speaker of the House of Commons, announced Parliament would resume on 25th September.
The case established an important precedent, showing that royal prerogative powers could be scrutinised by the courts if they undermine democratic principles.
The ruling marked a significant step in judicial review of executive powers and limited their scope when they threaten fundamental democratic functions.
