The Judiciary

Question 1

when was the UK SC set up

Answer 1

The UK supreme court was established under the Constitutional Reform Act of 2005 and opened its doors in October 2009

Question 2

3 reasons why the SC had to be established?

Answer 2

The reasons the Supreme court was established:
1) There was fusion of powers or incomplete separation of powers
2) Lack of fair appointments process
3) Confusion over the role and status of the Law Lords

Question 3

What is common law?

Answer 3

Law that has been shaped by judges as oppssed to passed by parlaiment (statute law)

Question 4

What calls into question the neutrality of judges?

Answer 4

thier undeniably conservative background

Question 5

What % of the SC judges went to private school ?

Answer 5

75% - 9 / 12

Question 6

How many women ?

Answer 6

2

Question 7

How many sc judges are white?

Answer 7

all

Question 8

What is ‘Rule of Law’

Answer 8

• everyone has right to fair trial
• decision can be overtunred by parliament

Question 9

What case ruled the proroging of Parliament unlawful ?

Answer 9

R (Miller) v The Prime Minister and Cherry v Advocate General for Scotland

Question 10

What is judicial independence ?

Answer 10

The principle that the actions and decisions of judges should not be influenced by pressure from other branches of government

Question 11

Theres 6 ways in which Judicial independence is maintained. List them;

Answer 11

1) Security of tenure (except if they break the law) - This means that politicians can’t threaten them with the loss of their jobs
2) Pay - not controlled by government
Judges’ salaries come from the Consolidation fund politicians can’t manipulate their salaries
3) Freedom from criticism (offence of contempt of court) - sub judice
Under the ‘sub judice’ rule, media and ministers cannot publically speak out against judges
4) Appointments system (not directly chosen by parliament )
Greater transparency was brought by the Constitutional Reform act
5) Training and Experience should allow for non-bias decisions - They are unlikely to compromise their standing to simply defer politicians or public
6) Creation of SC - replaced by House of Lords

Question 12

What is Judicial neutrality?

Answer 12

The absence of any form of partisan commitment; a refusal to take sides

Question 13

Give 4 ways in which Judicial neutrality is maintained;

Answer 13

1) Political restrictions - not supposed to engage in open political activity
- Judges cannot campaign - Although judges can vote, their outlooks should not become a matter of public record
2) Legal training - focus on legal considerations
- Elevation to the bench would suggest an ability to put personal bias to one side
3) Accountability - must explain rulings and are subject to appeal
- The idea being that if judge have to explain their decisions, the decisions cant possibly be bias
- Uk Supreme court decisions are published in full on their website
4) Not public figures - discouraged from speaking out
- Judges operate away from the public eye
- Senior judges should avoid being drawn into any open defence or criticism

Question 14

Why is ‘Judicial Review’ so powerful?

Answer 14

This is because the higher courts clarify the meaning of the law through their judgements and can establish legal precedent or common law

Question 15

What does it mean to act ‘ultra vires’?

Answer 15

Beyond the authority given by parliament

Question 16

Give an example of the UK courts suspending staute law

Answer 16

‘factor time’
-told of a Spanish owned fishing company which challenged the legality of the Merchant Shipping Act in 1988
- Prior to this Act, the company re-registered Spanish boats as British
- Because these boats were registered in the UK, their catches counted against EU fishing Quotas
- This was the first case in which UK courts suspended UK statute law where it appears to violate EU law

Question 17

Why is the US bill of rights more stable than the HRA?

Answer 17

The HRA is not entrenched due to no codified constitution - it can, theoretically, be removed

Question 18

What can the US SC do that the UK can’t?

Answer 18

declare bills ‘unconstitutional’ and remove them
- UK can only implement ‘Judicial Review’

Question 19

What is an injunction?

Answer 19

An injunction can be issued to stop an action taking place (a newspaper running a story or a strike from occurring if a trade union has broken the law)

Question 20

What recent developments have enchanced the significance of the ‘ultra vires’ power

Answer 20

• The growing importance of European Union Law
  - The Impact of the Human Rights Act 1998

Question 21

How has the HRA enhanced the power of the UK Supreme Court?

Answer 21

The Human Rights Act was passed in 1998 and came into force in October 2000.

It incorporated most of the European Convention on Human RIghts articles into UK law, allowing UK citizens to pursue cases under the ECHR directly through UK courts and thus saving them the trip to Strasburg.

Question 22

What is the impact of brexit on the SC?

Answer 22

Little impact on HRA, ECHR or ECtHR
Involves withdrawing from Treaty of Rome
EU law will no longer supersede UK law
ECJ will have no justification in UK

The removal of a court that is superior to the Supreme Court, at least in some aspects of law, could serve to enhance the Supreme Court’s status and authority

Question 23

3 examples of the Supreme Court is too powerful

Answer 23

1) The precedent established under the Factortame case (1990) allowed senior judges to suspend the actions of both parliament and the executive where either branch appeared to have breached EU law - Rising above English Statute

2) The Un-elected nature of the Supreme Court makes it hard to not criticise them when they make decisions which have large social and political impacts. - Unelected make Political Decisions

3) Judges are uncountable when making judicial review, meaning they can avoid general criticism and many people don’t like the fact that they are almost politicians without the responsibility - Un-Accountability leads to freedom in judicial review

Question 24

3 examples of the SC is not too powerful

Answer 24

1) Although the HRA gives judges the right to issue a ‘declaration of incompatibility’ where an Act of Parliament appears to have violated the ECHR, parliament is under no legal obligation to fall into line with the Court’s ruling. - Parliamentary Sovereignty Rules - e.g. 2018, R Miller v Sec of State for exiting EU - found UK govt could not trigger article 50 without an act of parliament

2) While senior judges have the ability to rule that ministers in the executive have acted ultra vires those very ministers can use the executive’s control of parliament to pass retrospective legislation legitimising their earlier actions - Executive Power Cancels

3) Although the scope and scale of EU law expanded significantly after Maastricht treaty (1992) leaving the EU meant that the UK would not be subject to EU law beyond the transition period, so reducing the scope for judicial action - Brexit impacts judicial power

Question 25

Why does David Cameron argue that Judicial Review hinders a democratically elected government to get things done?

Answer 25

the triggering of Article 50

Question 26

Example of ‘Executive power cancelling’

Answer 26

2013:
Reilly v Secretary of State for Work + Pensions

Reilly argues Department for Work and Pensions infringes on Artcile 4 of ECHR because they asked her to work for a private company

• Judges agree its unlawful and DWP acted ‘ultra vires’

Govt pass Jobseekers (‘Back to Work Schemes’) Act - 2013 which changes the law retrospectively so that no offence had been committed

In 2016, Judges think this goes against article 6 (ECHR) fair trial, also understand it was a suggestion and parly can do what they want

Question 27

Give an example of the HRA, 1998 making the SC more powerful

Answer 27

Tigere v Sec of State for Business, Innovation + Skills (2015)

Couldn’t apply for Student Loan as not able to say she lived in UK until 2018

2015, UK SC accepted Togere’s appeals on the grounds that it negatively impacted her rights to education and discrimination