The judiciary

Question 1

Supreme Court

Answer 1

Comprises 12 justices and based in Middlesex Guildhall, close to the Westminster parliament. The court acts as the final court of appeal for all cases in England, Wales and Northern Ireland, as well as hearing appeals from civil cases in Scotland

Question 2

How many senior judges are there in the UK

Answer 2

12

Question 3

what was the highest court of appeal before the supreme court was established in 2009

Answer 3

The 12 Law Lords would sit in the Appellate Committe of the House of Lords.

Question 4

Constitutional Reform Act 2005

Answer 4

The Constitutional Reform Act 2005 reduced the power of the Lord Chancellor, placing most senior judicial appointments into the hands of a new, independent Judicial Appointments Commission

Question 5

Why is the JAC significant

Answer 5

The JAC was created as a means of lending greater transparency and legitimacy to the process by which most senior judges are appointed, the CRA established an entirely different process with respect to appointments to the UK Supreme Court.

Question 6

Does the Supreme Court ‘look like the UK’?

Answer 6

-in April 2019 9/12 supreme court justice dependent school

-all but one was above the age of 60

‘male stale and pale’

-11/12 went to Cambridge or Oxford

In 2021 75% of justices had attended independent secondary schools compared to 7% of the population

In 2021 92% of the justices had attended Oxford or Cambridge compared to 1% of the UK’s population

In 2021 there were 2 women justices(17%) compared to 51% of the UK’s population in 2021

In 2021 there were no ethnic minority supreme court justices compared to 14% of the UK’s population in 2021

The average age of justices in 2021 was 65 compared top the average age of 40.5.

Question 7

Three reasons why the UK Supreme Court was established

Answer 7

• Concerns over the incomplete separation of powers present in the UK system
• Widespread criticism of the system under which Law Lords were appointed
• Confusion among the general public over the status, the role and the work of the Law Lords

Question 8

Separation of powers

Answer 8

• The legislature legislates (i.e. makes the laws).
• The executive branch has the role of executing policy (i.e. putting laws into effect).
• The judiciary is charged with the task of enforcing and interpreting the laws.

Question 9

Three key functions performed by the UK Supreme Court

Answer 9

• To act as the final court of appeal in England, Wales, and Northern Ireland
• To hear appeals from civil cases in Scotland
• To hear appeals in cases where there is uncertainty and thereby clarify the meaning of the law

Question 10

Judicial independence

Answer 10

The principle that those in the judiciary should be free from political control. Such independence allows judges to ‘do the right thing’ and apply justice properly, without fear of the consequences.

Question 11

Judicial impartiality

Answer 11

Where judges operate without personal bias in their administration of justice. It is an essential requirement of the rule of law.

Question 12

What features of the UK system support judicial independence?

Answer 12

1 Security of tenure: retirement aside, judges are appointed for an open- ended term, making it harder for politicians to bring influence to bear by threatening to sack or suspend them. Removing a judge by impeachment would require a vote in both Houses of parliament.
2 Guaranteed salaries-judges’ salaries are paid automatically from the Consolidated Fund. This means that politicians are unable to manipulate judges’ salaries as a way of controlling them.
3 Contempt of court-under the sub judice rule, the media, ministers and the wider public are prevented from speaking out publicly during legal proceedings.
4 A growing separation of powers- the downgrading of the post of Lord Chancellor and the creation of a new UK Supreme Court enhancedthe separation between the senior judiciary and the other branches of government.
5 An independent appointments system-the creation of the JAC, under the Constitutional Reform Act, brought greater transparency to the process of judicial appointments and served to address accusations of political bias.
6 Training and experience-most senior judges have served a long apprenticeship in law. They have high status and take considerable pride in their legal standing. They are unlikely to compromise their professional integrity simply to defer to politicians or public opinion.

Question 13

How is judicial impartiality guaranteed?

Answer 13

1 Anonymity: judges generally operate away from the public eye and rarely speak out publicly on issues of law or public policy. Senior judges are expected to avoid being drawn into open defence of their rulings, or open criticism of those in government.
2 Political activity: judges are not supposed to campaign on behalf of a political party or a pressure group. Although judges retain the right to vote, their political views or outlook should not become a matter of public record.
3 Legal justifications of judgements: the fact that senior judges are expected to explain how their decisions are rooted in law makes it less likely that those decisions will be coloured by personal bias. UK Supreme Court decisions are published in full on the Court’s website.

Question 14

Threats to judicial impartiality

Answer 14

• narrow recruiting pool - makes it harder for judges to make impartial decisions when their own life experiences are so different from most of those who are brought before them. - The creation of the JAC seems to have missed at addressing this problem.
• Judges have also been drawn into more politically charged conflicts in recent years e.g. Human Rights 1998 - resulted in the politicisation of the supreme court - growing public profile leads to a threat to the impartially of the judiciary

-However, it could equally be seen as evidence of growing judicial independence and impartiality — not least because senior judges appear increasingly willing to take on the political establishment in defence of civil liberties.

Question 15

Has the UK judiciary become more politicised in recent years?
YES

Answer 15

The Human Rights Act 1998 drew senior judges into the political fray by requiring them to rule on the ‘merit’ of an individual piece of statute law as opposed to its ‘application’.

R (Factortame Ltd) v Secretary of State for Transport (1990) established the precedent that UK courts could ‘suspend’ Acts of Parliament where they were thought to contradict EU law.

The creation of the Supreme Court and the physical relocation of the most UK senior judges to its base in Middlesex Guildhall brought senior judges into the public arena and subjected them to greater scrutiny by the media.

Politicians have broken with convention by publicly criticising rulings handed down by senior judges.

Question 16

Has the UK judiciary become more politicised in recent years?
NO

Answer 16

The creation of the JAC and the process established in respect of appointments to the Supreme Court has enhanced transparency and addressed concerns over political interference.

Although ‘politicisation’ is often associated with political interference and/or control, the UK senior judiciary has in fact become more independent in the wake of the Constitutional Reform Act, e.g. through the ‘downgrading’ of the role of Lord Chancellor.

Increased conflict between judges and politicians is a ‘positive’ because it shows that the courts are challenging the government when it appears to be encroaching upon the public’s civil liberties.

The fact that senior judges still benefit from security of tenure and guaranteed salaries helps to insulate them from political pressure.

Question 17

Judicial review

Answer 17

The process by which judges review the actions of public officialsor public bodies in order to determine whether or not they have acted in a manner that is lawful.

Question 18

The importance of judicial review

Answer 18

whilst the supreme court does not have the power to strike down Acts of Parliament both the Supreme Court and the courts of appeal wield influence through their exercise of judicial review

Question 19

The limitations of the Supreme Court’s power under the
Human Rights Act

Answer 19

The HRA can be amended, ‘suspended’ (derogated) — in its entirety or in part — or simply repealed, like any Act. Crucially, while the courts can make a declaration of incompatibility and invite parliament to reconsider the offending statute, they cannot strike down parliamentary statute under the HRA.

Where statute is silent or unclear, the courts can make use of the HRA by using its provisions to establish legal precedent in common law. In addition, we should remember that the HRA also has a hidden influence through the process by which draft legislation is now examined by parliament’s Joint Committee on Human Rights in order to ensure that it is HRA-compatible.

Question 20

Has the UK judiciary had a greater impact on the work of the executive and parliament in recent years?
YES

Answer 20

The Constitutional Reform Act 2005 enhanced judicial independence by reducing the role of Lord Chancellor and removing the UK’s most senior judges from the House of Lords.

Creating a clearer physical separation between the judiciary and the government, by relocating the Supreme Court to Middlesex Guildhall, also allowed the most senior judges to come out of the shadows and develop a more public profile.

By allowing cases under the ECHR to be heard in UK courts, the HRA 1998 empowered the UK’s most senior judges to directly question Acts of Parliament — as well as the actions of those working in the executive.

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.

Question 21

Impact of leaving the EU on the Supreme Court

Answer 21

-A proportion of its case load in recent years has related to EU law.
-The Supreme Court will no longer be tasked with enforcing EU law over UK law.
- 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 22

Has the UK judiciary had a greater impact on the work of the executive and parliament in recent years?
NO

Answer 22

Although the HRA gives judges the right to issuea ‘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.

While senior judges have the ability to rule thatministers in the executive have acted beyond their statutory authority (i.e. ultra vires), those very ministers can use the executive’s control of parliament to pass retrospective legislation legitimising their earlier actions.

Although the scope and scale of EU law expanded significantly after Maastricht, 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.

Question 23

The overall impact of the UK Supreme Court

Answer 23

it is impossible for the UK Supreme Court to ‘strike down’ Acts of Parliament or force the executive to give way.
In the wake of Brexit, the Court’s power is limited to the three main areas identified over the course of this chapter:
-Revisiting and reviewing earlier legal precedent established under common law and case law (‘judge-made law’)
-Making ultra vires rulings where the Court judges that public bodies have acted beyond their statutory authority
-Issuing ‘declarations of incompatibility’ under the Human Rights Act 1998

While the Court can certainly be said to have developed a more public profile since 2009, Lord Philips’ prediction that the change would essentially be one of ‘form rather than of substance’ has, in large part, been borne out. The five ‘key cases’ that Lord Neuberger identified, in a 2014 article that marked the Court’s fifth birthday, did not represent a significant departure from what the Law Lords might have done previously.

Question 24

Factors enhancing the authority of the UK Supreme Court include:

Answer 24

-a more independent and less opaque appointments process than that which applied to the Law Lords
-a clearer separation of powers accompanied by a clear physical separation between legislature and judiciary
- an ongoing process of ‘demystification’ via public visits, an intelligible website and enhanced coverage in the mainstream media