The judiciary Flashcards
What are the key principles of the judiciary?
- Judicial independence and impartiality
E.g. justice’s pay comes from an independent budget known as the
Consolidated Fund which is protected from interference by ministers
E.g. justices make neutral decisions irrespective of their personal beliefs - Separation of powers, the judiciary is separate from parliament and the government
E.g. an independent five-member Selection Commission nominates justices, a justice can only be refused one by the PM in the confirmation process
(upholds the rule of law) - Judicial review, courts can declare the actions of the government unconstitutional by interpreting the HRA 1998.
E.g. in R vs Secretary of State for the Home Department 2019 the UKSC ruled that he right to rent scheme (landlords in England have to check the immigration status of tenants they rent properties to, and deny lodgings to those who cannot prove they are permitted to live in a rented home) is incompatible with article 14 of ECHR. - Ultra vires, everyone is subject to the law of the land, including the government.
E.g. if public bodies are deemed by courts to have exceeded powers, their actions are declared ultra vires i.e. beyond power of the law and therefore illegal, must be reversed.
Is the judiciary too powerful?
- Yes, HRA 1998 means justices get involved in politics and clash with the government, undermining both parliamentary sovereignty and democracy.
E.g. in R v Secretary of State 2019 the court ruled that the right to rent scheme was incompatible with article 14 of the ECHR
No, judges can only interpret laws passed by parliament
E.g. Parliament chose to sign up to the ECHR and the HRA 1998, and could equally opt to reverse both actions
2.
Yes, judges make decisions that can have a huge impact
E.g. cases involving assisted dying or switching off life-support machines, such as Great Ormond Street Hospital v Yates 2017, which found that the best interests of the child require that he not be given experimental medical treatment and instead be taken off life support.
No, judges are very experienced legal professionals who are properly trained at looking at complex and difficult cases impartially
E.g. UKSC justices will normally have served as senior judges for two years or been a qualified lawyer for 15 years, and they are better suited than politicians who might be swayed by public opinion and the media.
Is there a lack of diversity among judges?
1.
Yes, judges do not reflect modern British society.
E.g. women make up 25% of the UKSC, but 51% of British society.
No, judges are not representatives of the people.
E.g. the appointment procedure involves selecting those with the most expertise and experience.
What are the main roles of the UKSC?
- Enforces the ECHR in the UK.
E.g. in R vs Secretary of State for the Home Department 2019 the UKSC ruled that he right to rent scheme (landlords in England have to check the immigration status of tenants they rent properties to, and deny lodgings to those who cannot prove they are permitted to live in a rented home) is incompatible with article 14 of ECHR. - Hears appeals of national importance.
E.g. R v Secretary of State for Exiting the EU 2017 - The final court of appeal for all UK civil cases and criminal cases.
E.g. Al Rawi v the Security Service 2011
What is the relationship between the UKSC and Europe?
- Although obliged to respect the precedents of the ECtHR, on rare occasions the UKSC has effectively sent cases back to Strasbourg for reconsideration.
E.g. the Horncastle case 2009, the ECtHR ruled that a person convicted by statements from witnesses not in court, had been denied a fair trial. The UKSC disagreed because the UK courts had always accepted witness statements from witnesses not in court
(this influenced the ECtHR when it came to hear a similar case 2 years later) - Under the HRA 1998, the UKSC has the power to decide whether a law is in breach of ECHR
E.g. in R v Secretary of State for the Home Department 2019 the court ruled that the right to rent scheme was incompatible with article 14 of the ECHR - Before Brexit, the UKSC also had to consider EU law
E.g. Factortame v Secretary of State for Transport 1990 the highest court at the time, the HoL, ruled that United Kingdom had breached EU law by requiring ships to have a majority of British owners if they were to be registered in the UK.
Is the court effective in overseeing the government, legislature and the making of policy?
- Yes, the court enforces the HRA 1998
E.g. all government bills must include a statement saying whether it is compatible or incompatible with HRA (right to rent scheme)
No, the government can choose to ignore ruling of the courts.
E.g. in 2005 the court ruled that a blanket ban on denying all prisoners the vote was incompatible with ECHR, but parliament did not subsequently change the law.
- Sometimes the court comes close to overturning key aspects of government policy.
E.g. in 2015 the UKSC narrowly upheld the controversial cap on the benefits an out of work family can receive, including benefits for children, up to £500 per week. Opponents claimed this breached aspects of the ECHR. (Had opponents won, it wold have threatened the principle of both parliamentary sovereignty and democratic accountability)
No,
‘3 key aspects of the judiciary’
- The judiciary lacks of diversity, especially at
the top levels (UKSC), particularly in terms of
gender, ethnicity and educational background.
E.g. E.g. women make up 25% of the UKSC, but 51% of British society. - The judiciary possesses powers of judicial review and ability thereby to check and limit government.
E.g. in R vs Secretary of State for the Home Department 2019 the UKSC ruled that he right to rent scheme is incompatible with article 14 of ECHR. - The judiciary appointments are selected on professional merit alone.
E.g. since 2006, all judges below the level of the SC have been appointed by the independent Judicial Appointments Commission, via an open and competitive process. - Judicial independence and impartiality.
E.g. judges are free from government interference, and their judgements are not swayed by personal opinion and popular pressure.
‘The UKSC has become increasingly prominent and powerful in the political life of the nation’.
- Yes, HRA 1998 gave the UKSC power to reach judgements using ECHR and not Westminster laws
as the ultimate source of authority. They can issue declarations of ‘incompatibility’
E.g. in R v Secretary of State 2019 the court ruled that the right to rent scheme was incompatible with article 14 of the ECHR
No, Parliament can overrule declarations of incompatibility
E.g. in 2005 the court ruled that a blanket ban on denying all prisoners the vote was incompatible with ECHR, but parliament did not subsequently change the law
- Yes, there are still important limits though to the influence of the court. Parliamentary sovereignty means it cannot strike down legislation as unconstitutional, as for example is the case in the USA. Individual judges also still remain relatively low-profile figures compared to elected politicians.
No, judges can only interpret laws passed by parliament
E.g. Parliament chose to sign up to the ECHR and the HRA 1998, and could equally opt to reverse both actions
2.
Yes, judges make decisions that can have a huge impact
E.g. cases involving assisted dying or switching off life-support machines, such as Great Ormond Street Hospital v Yates 2017, which found that the best interests of the child require that he not be given experimental medical treatment and instead be taken off life support.
No, judges are very experienced legal professionals who are properly trained at looking at complex and difficult cases impartially
E.g. UKSC justices will normally have served as senior judges for two years or been a qualified lawyer for 15 years, and they are better suited than politicians who might be swayed by public opinion and the media.
The significance of the creation of the UKSC,
which is both physically and institutionally
independent of the other branches of
government. It has an increasingly highprofile (prominent) nature; mention a couple
of cases such as Article 50 or anti-terrorism
legislation.
– Lord Neuberger (first president of the
UKSC) and his list of the five most important
court cases from 2009 to 2014 such as the
Horncastle case, which could also be used to
suggest a degree of power and prominence.
– The impact of the Human Rights Act, and
previously, the Factortame case. Both gave
the UKSC power to reach judgements using
EU law/the ECHR and not Westminster laws
as the ultimate source of authority. The power
to issue declarations of ‘incompatibility’
should also be mentioned, although its limits
could be referred to. For example, parliament
has refused to grant prisoners the vote
despite court rulings.
– There are still important limits though to
the influence of the court. Parliamentary
sovereignty means it cannot strikannot strike down laws
passed by parliament as unconstitutional, as for example is the case in the USA. Individual
judges also still remain relatively low-profile
figures compared to elected politicians.
– It could also be mentioned that it is still early
days in its existence, so any conclusion is
bound to be somewhat limited. Parliament
still clearly (and rightly?) dominates the
nation’s political life, but the UKSC is
increasingly influential albeit from a low
starting point.
What are key supreme court cases before 2016?
- Al Rawi v the Security Service 2011.
E.g. the court ruled that even in serious cases, each side must hear and see all evidence and arguments put before the judge (secret service could previously give evidence in secret). Defeat for government. - Trump International Golf Club Limited v Scottish Ministers 2015.
E.g. the court ruled that Scotland has not exceeded its powers in allowing a wind farm to be built near a new golf club owned by Trump. Victory for government. - R v Chancellor of the Dutchy of Lancaster 2016.
E.g. the court ruled that UK voting regulations did not unlawfully interfere with the right to freedom of movement within the EU (allowed UK citizens who had lived abroad for over 15 years to vote in EU referendum). Victory for government.
What are key supreme court cases after 2016?
- R v Secretary of State for Exiting the EU 2017.
E.g. the court ruled that the government must be allowed a vote of Article 50 (government must get parliamentary approval to leave EU). In part a victory and in part a defeat for the government. - Great Ormond Street Hospital v Yates 2017.
E.g. the court found that the best interests of the child require that he not be given experimental medical treatment and instead be taken off life support. - Commissioner of Police of the Metropolis v DSD 2018.
E.g. the court found that the victims of the serial rapist John Worboys human right’s can been breached by Metropolitan Police for not taking their allegations seriously.
