Supreme Court Flashcards
Constitutional case for the creation of a Supreme Court
judges must be independent from other powers in the State, according to the doctrine of separation of powers and to be in line with modern democracy.
This is so judges can carry out core tasks of resolving disputes, protecting fundamental rights and ensuring that everybody can live securely under the rule of law.
ECHR Article 6.1?
Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.
Select Committee on the Constitutional Reform Bill Argument For (4)
- Law Lords are judges and not legislators, separation between roles should be made explicit
- Help public understanding of the legal system
- Change required in order to comply fully with [ECHR Article 6.1]
- Accommodation for the Law Lords in the Palace of Westminster is inadequate
Select Committee on the Constitutional Reform Bill Argument against (5)
- No theoretical constitutional principle in the UK requiring separation of judicial and legislative functions: There was never a strict separation of powers
- Little evidence to support assertion that public understanding would be improved by creating a new court, or that there was any confusion to begin with
- [EACHR Article 6.1] Does not specifically state a need for distinct division of functions between judges and legislature, but concerned with specific connections in individual cases
- Palace of Westminster accommodation problems were exaggerated
- New court would not constitute value for money
Constitutional changes from the Constitutional Reform Act 2005 (5)
[Constitutional Reform Act 2005, s. 3] Guarantee of continual judicial independence
s. 3(1): Lord Chancellor and other Ministers must uphold the continued independence of the judiciary
s. 3(5): Lord Chancellor and other Ministers must not seek to influence particular judicial decisions
s. 3(6)(a): Lord Chancellor has the duties to ‘defend’ judicial independence
s. 3(6)(b): Lord Chancellor must ensure that the judiciary has the ‘support necessary to enable them to exercise their functions’
Changes after 2009 (5)
- Sits in Middlesex Guildhall
- Comprises a President, Deputy President and 10 Justices of the Supreme Court
- Acting judges may be brought in to hear particular cases
- Most cases heard by panels of 5, but can be 7, 9 or 11
- All proceedings are webcast
Relationship with constitutional principles (2)
Master of the Rolls (Lord Neuberger)
- The reform creates a real risk of the judges “arrogating to themselves greater power than they have at the moment”.
- To change the Law Lords into the Supreme Court seems to be a “last-minute decision over a glass of whiskey”
Lord Phillips of Worth Maltravers
• Judiciary is sill dependent on the executive in the form of the Ministry of Justice for its funding
Constitutional significance of creation of a Supreme Court? (3)
Lord Woolf CJ (2004) • “Among the Supreme Courts of the world, our Supreme Court will, because of its more limited role, be a poor relation. We will be exchanging a first class Final Court of Appeal for a second class Supreme Court.”
Malleson (2011)
• “Argument that the Supreme Court is essentially the same body renamed and re-housed, while technically accurate, misses the potential effect of form on substance.”
• Cultural connotations of the title, being in the shadow of the US Supreme Court, will impact psychologically a way which affects both internal and external expectations of the role of the court
Master of the Rolls (Lord Neuberger)
• s. 40(5) of the CRA 2005 may imply a power to review the constitutionality of statutes
Pre-CRA 2005 appointments process (4)
- Executive appoints judges
- Lord Chancellor accounts to Parliament
- Lord Chancellor notifies Prime Minister when appointing judges for high court and lower
- Lord Chancellor notifies Prime Minister when appointing judges above high court
Case for change appointments process(2)
The Governance of Britain: Judicial Appointments Green Paper (2007)
- Linked to independence is the principle that judges should be appointed on merit:
- No one should be appointed to a position unless they are competent to do it
- If two or more people meet the criteria, choose the best
•Equality: Judges need an effective understanding of the communities they serve, achieved by ensuring judges are drawn from diverse communities that make up modern Britain
Post-CRA 2005 appointment changes & key provisions (2)
[CRA 2005, Part 4 & Schedule 12]
Judicial Appointments Commissions for England and Wales (JAC)
[CRA 2005, Part 3]
Justice of the Supreme Court Selection Commission
Judicial Appointments Commissions for England and Wales (JAC)
• Independent body consisting of 15 members: 1 Chairman (layperson), 5 Judges, 2 Lawyers, 5 Laypersons, 1 Legal tribunal member, 1 Lay magistrate
Appointments procedure:
• Lord Chancellor receives name of candidate: accept, reject, ask commission to reconsider
• If rejected or asked to reconsider, JAC must select another or same candidate
• Lord Chancellor receives name of candidate again, has 3 options again
• Lord Chancellor must accept 3rd JAC selection
Justice of the Supreme Court Selection Commission
• Consists of 5 members: President of Supreme Court as Chair, Vice-president of Supreme Court, 1 x 3 Territorial commissions (1 must be Layperson)
Requirements:
• Held high judicial office for at least 2 years, or
• Has been a qualifying practitioner for at least 15 years
Appointments procedure:
• Commission conducts consultation on possible appointees
• Commission reports name to Lord chancellor
• Second round of consultation
• Lord Chancellor has power to accept, reject or ask to reconsider
• Selection complete: Notifies Prime Minister, who passes to Queen for formal appointment
Merit & Diversity
Statutory duty to select candidate for judge by merit and diversity
- s. 63(2): Selection must be solely on merit
- s. 63(3): Person must not be selected unless satisfied that they are of good character
- s. 63(1): Must have regard to need to encourage diversity in range of persons available
JAC Statement of qualities and abilities necessary for judicial office:
• Intellectual capacity, Personal qualities, Ability to understand and deal fairly, Authority and communication skills, Efficiency
Strengths & Weaknesses of post-CRA 2005 appointments
Equality & Diversity
Executive role in appointments
Parliament role in appointments