The Judiciary Flashcards
KEY CONCEPT: UK Supreme Court
KEY CONCEPT
Supreme Court 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, and plays a key role in establishing legal precedent, by hearing appeals and laying down case law in cases where there is legal uncertainty.
Key points ✚ The judiciary is concerned with applying the law and ensuring that
government and other public institutions such as local councils follow their own rules.
✚ The judiciary also has a crucial role in protecting citizens’ rights. ✚ The UK judiciary is organised hierarchically. ✚ The UK does not have a unified legal system and there are differences between England and Wales, and Scotland and Northern Ireland.
✚ The UK Supreme Court (UKSC) is the only judicial institution that has authority in all parts of the UK.
Explain and analyse the Composition of the Judiciary and the Appointments Process:
Structure of the UK Judiciary
• The term judiciary refers to all judges in the UK, from lay magistrates and tribunal judges to the 12 Supreme Court justices.
• Historical Development: Before the UK Supreme Court was established in 2009, the highest court of appeal was the Appellate Committee of the House of Lords, composed of 12 Law Lords who were both judges and members of the legislature.
• Different Legal Systems: The UK does not have a single judicial system.
• England and Wales, Scotland, and Northern Ireland each have their own legal systems.
• The UK Supreme Court is the final court of appeal for all three, ensuring consistency in case law and establishing legal precedents.
Judicial Appointments Process
• Judicial Appointments Commission (JAC): Established to ensure that judicial appointments are based on merit and free from political influence.
• Supreme Court Appointments: The appointment of Supreme Court justices is overseen by an independent selection commission, with the Lord Chancellor playing a limited role in the process.
• Principles of Appointment: Selection is based on legal expertise, independence, and experience rather than political affiliation, ensuring a judiciary that upholds the rule of law and judicial impartiality.
Significance
✔ The judiciary’s independence from the executive and legislature reinforces the separation of powers, ensuring that judges rule based on law rather than political pressure.
✔ The UK Supreme Court’s ability to establish legal precedents enhances legal certainty and consistency across different legal systems.
✔ The Judicial Appointments Commission (JAC) reduces the risk of political interference, ensuring that judges are appointed based on merit and legal expertise rather than political loyalty.
Limitations
✘ Despite independence in appointments, the Lord Chancellor retains some influence, potentially allowing for political considerations in the process.
✘ The lack of diversity in the judiciary (historically dominated by white, male, Oxbridge-educated judges) has raised concerns about representativeness and public confidence in the legal system.
✘ The judiciary’s power to interpret laws and overturn government decisions (through judicial review) can lead to tensions between the judiciary and the executive, particularly in politically sensitive cases.
Composition and Appointment of the Judiciary
Appointment Procedure
• Judges are appointed based on merit and experience through an independent process.
• Politicians have no real influence over judicial appointments, unlike in the USA.
• Since 2006, the Judicial Appointments Commission (JAC) has been responsible for appointing judges below the Supreme Court level via an open, competitive process.
• Previously, the Lord Chancellor played a key role, but now they have only limited veto power over JAC selections.
Concerns Over Judicial Composition
• The UK judiciary, particularly at senior levels, lacks diversity in terms of gender, race, and social background.
• It has been criticised as “too privileged, pale, and male.”
Significance & Limitations
• Significance: The JAC ensures judicial appointments are based on merit, promoting independence.
• Limitation: The judiciary remains dominated by elite backgrounds, limiting diversity and representation.
SYNOPTIC LINK: UK/US Judiciary Comparison – Significance and Key Points
UK/US Judiciary Comparison – Significance and Key Points
Similarities:
✔ Both systems are hierarchical, with the UK Supreme Court and US Supreme Court acting as final courts of appeal.
✔ Both have judicial independence enshrined in law to prevent political interference.
✔ Both establish legal precedents that shape future rulings.
Differences:
✘ Appointment Process – US federal judges, including Supreme Court justices, are nominated by the president and confirmed by the Senate, often leading to political battles. In contrast, UK judges are selected through independent commissions, reducing direct political influence.
✘ Tenure – US Supreme Court justices have lifetime appointments, while UK Supreme Court justices must retire at 75, limiting long-term political impact.
✘ Judicial Power – The US Supreme Court has the power of constitutional judicial review, allowing it to strike down laws as unconstitutional. The UK Supreme Court cannot overturn primary legislation due to parliamentary sovereignty.
✘ State-Level Variation – US states have their own legal systems and courts, with some judges even elected, making the US judiciary more politicised than the UK’s centrally appointed judges.
Significance:
✔ The UK’s judiciary is seen as more independent due to its merit-based appointments and lack of direct political confirmation.
✔ The US system allows for stronger judicial checks on government power, while the UK judiciary remains limited by parliamentary sovereignty.
✔ Differences in judicial tenure mean US justices can influence policy for decades, whereas UK justices have a shorter window of influence.
Limitations & Controversies:
✘ The UK judiciary still faces concerns over diversity and representation, similar to criticisms in the US.
✘ The US system’s political appointment process often leads to accusations of partisanship, undermining perceived neutrality.
✘ UK courts rely more on statutory interpretation than constitutional law, making their ability to challenge the government weaker than in the US.
Explain and analyse the Composition and Importance of the Senior Judiciary
Composition of the Senior Judiciary
• Supreme Court Justices – The 12 justices of the UK Supreme Court serve as the final court of appeal.
• Heads of Divisions – Senior judges leading key courts, such as the Lord Chief Justice (Head of the Judiciary in England and Wales).
• Lords Justices of Appeal – Judges in the Court of Appeal, handling appeals from lower courts.
• High Court Judges – Senior judges responsible for complex or high-profile cases in civil and criminal law.
• Deputy High Court Judges – Temporary judges who assist in handling cases when necessary.
Importance of the Senior Judiciary
✔ Judicial Review – Senior judges clarify or establish legal positions where statute law is absent or unclear, ensuring government accountability.
✔ Common Law Development – Through precedent-setting rulings, senior judges shape UK law, influencing lower courts and policymakers.
✔ Separation of Powers – Acts as a check on executive and legislative actions, ensuring they align with legal and constitutional principles.
✔ Human Rights Protection – Enforces the Human Rights Act 1998, ensuring laws and policies respect fundamental rights.
Significance
✔ Ensures legal certainty, particularly where parliamentary law is ambiguous or silent.
✔ Protects individual rights by reviewing executive actions and challenging unlawful government decisions.
✔ Provides judicial independence, maintaining a non-political and impartial judiciary to uphold the rule of law.
Limitations
✘ No power to strike down primary legislation – Unlike the US Supreme Court, UK courts cannot overturn Acts of Parliament due to parliamentary sovereignty.
✘ Judicial independence concerns – While selection is merit-based, some argue that government influence remains through judicial appointments and funding decisions.
✘ Lack of diversity – Senior judges remain predominantly from elite educational and professional backgrounds, raising concerns about representativeness.
Composition and Appointment of the Judiciary
Appointment Procedure
• Judges are appointed based on merit and experience through an independent process.
• Politicians have no real influence over judicial appointments, unlike in the USA.
• Since 2006, the Judicial Appointments Commission (JAC) has been responsible for appointing judges below the Supreme Court level via an open, competitive process.
• Previously, the Lord Chancellor played a key role, but now they have only limited veto power over JAC selections.
Concerns Over Judicial Composition
• The UK judiciary, particularly at senior levels, lacks diversity in terms of gender, race, and social background.
• It has been criticised as “too privileged, pale, and male.”
Significance & Limitations
• Significance: The JAC ensures judicial appointments are based on merit, promoting independence.
• Limitation: The judiciary remains dominated by elite backgrounds, limiting diversity and representation.
SYNOPTIC LINK: UK Supreme Court vs US Supreme Court
SYNOPTIC LINK: UK Supreme Court vs US Supreme Court
• UK Supreme Court: Comprises 12 justices, including the President, the Deputy President, and 10 justices.
• The UK’s judiciary system is designed to maintain a check on governmental power through judicial review, setting legal precedents and ensuring the rule of law, particularly where legislative clarity is absent.
• The larger composition ensures broad expertise across various legal fields, helping make decisions on complex constitutional issues.
• US Supreme Court: Comprises 9 justices, including the Chief Justice and 8 associate justices.
• The US Supreme Court plays a similar role in constitutional interpretation, ensuring laws align with the US Constitution.
• The smaller number allows for a more streamlined decision-making process, but debates over the politicization of appointments have been prominent, especially with regards to lifetime tenure.
Significance
• The UK’s larger Supreme Court reflects a broader range of judicial experience to handle complex legal issues, but the smaller US Supreme Court can make decisions more efficiently with fewer justices.
• Both courts hold significant judicial review powers, though in the UK, these powers are limited by parliamentary sovereignty, whereas in the US, the court can overrule laws deemed unconstitutional, establishing a more robust system of checks and balances.
Limitations
• The larger UK Supreme Court can sometimes face coordination challenges due to the greater number of justices.
• The US Supreme Court’s smaller size means that decisions are often more polarized based on ideological lines, especially given the lifetime tenure of justices, which leads to concerns about its partisan composition.
Explain and analyse the Appointments to the Senior Judiciary in the UK, include CASE STUDY.
Appointments to the Senior Judiciary in the UK
• Historical System:
• Senior judiciary appointments were historically made by the monarch, advised by the prime minister and Lord Chancellor.
• The process was opaque, often relying on secret soundings and leading to a judiciary predominantly composed of white, male, Oxbridge-educated, and public school elites.
• Criticisms emerged about lack of transparency and how this undermined the separation of powers.
Significance
• Lack of transparency and social bias in the old system was seen as incompatible with a modern democratic system, where the judiciary should be independent and representative of broader society.
• Reform was necessary to improve accountability and ensure that the judiciary reflected a wider section of society, not just the elite classes.
Constitutional Reform Act 2005 (CRA 2005)
• New System:
• The Judicial Appointments Commission (JAC) was created to handle most senior judicial appointments, independently of the Lord Chancellor.
• The Lord Chancellor’s role was diminished, allowing for a more transparent process.
• The UK Supreme Court was also established, with its 12 justices replacing the Law Lords as the highest court of appeal.
Significance
• Enhancing Separation of Powers: By removing the Lord Chancellor’s influential role, the CRA 2005 ensured greater independence in the judicial appointment process, supporting the principle of separation of powers.
• Transparency: The creation of the JAC made the appointment process more open and merit-based, aiming to reduce political interference and promote diversity within the judiciary.
• Social Representation: One key goal of the reform was to make the senior judiciary more socially representative of the broader population, rather than the traditional elite group of judges.
Limitations
• Despite the reforms, the judiciary remains disproportionately male and white in its senior ranks, indicating that full social diversity has not yet been achieved.
• The Lord Chancellor’s role was reduced, but their involvement in Supreme Court appointments remains, raising questions about how independent the process really is.
• The JAC itself, while independent, is still subject to the Lord Chancellor’s veto on certain appointments, suggesting the reform didn’t fully sever all ties between politics and the judiciary.
Qualifications for Appointment to the UK Supreme Court and process of appointing justices to the UK Supreme Court.
Qualifications for Appointment to the UK Supreme Court
• High Judicial Office or Qualifying Practitioner:
• To be considered for a Supreme Court justice, candidates must have:
• Held high judicial office for at least 2 years, or
• Been a qualifying practitioner for 15 years.
• Qualifying Practitioner Criteria:
• A senior courts qualification, or
• An advocate in Scotland or a solicitor entitled to appear in the Scottish Court of Session and the High Court of Justiciary, or
• A member of the Bar of Northern Ireland or a solicitor of the Court of Judicature of Northern Ireland.
Judicial Appointment Process (UK Supreme Court)
1. Vacancy Arises:
• A vacancy occurs within the Supreme Court.
2. Selection Commission:
• A five-member selection commission is convened to consider and select candidates based on merit.
3. Report to Lord Chancellor:
• The commission submits a report to the Lord Chancellor, recommending a nominee.
4. Reconsideration:
• If necessary, the Lord Chancellor can ask the commission to reconsider the selection.
5. Confirmation:
• Once the nomination is finalized, the prime minister must recommend the nominee to the Queen.
6. Monarch’s Approval:
• The Queen issues a letter patent, officially confirming the appointment of the justice.
Significance
• Merit-based System: The process emphasizes merit and ensures that only highly experienced and qualified individuals are appointed, promoting judicial independence.
• Transparency and Legitimacy: The creation of the selection commission has introduced a transparent and independent process, improving public confidence in the judiciary.
Limitations
• While the Lord Chancellor has a limited role, the Prime Minister’s involvement in recommending the candidate and the monarch’s final approval could potentially allow political influence in the selection process.
Case Study: Does the Supreme Court ‘Look Like the UK’?
Does the Supreme Court ‘Look Like the UK’?
The UK Supreme Court, although not expected to fully reflect the social demographics of the broader population due to statutory qualifications and the necessity for considerable legal experience, faces criticism for elitism. The membership of the Court reflects a strong bias towards certain educational backgrounds and social circles, particularly because most justices were educated at prestigious independent schools and elite universities like Oxford and Cambridge. As of 20 April 2021, a breakdown of the composition revealed that most, if not all, justices had an Oxbridge education.
Significance
1. Elite Educational Background: The majority of justices come from independent schools and elite universities, primarily Oxford and Cambridge. This has led to criticisms of elitism, as these institutions cater to a narrow social and economic class. The Court’s composition raises questions about whether it truly represents the diversity of UK society, given its concentration in these exclusive circles.
2. Meritocratic Selection: Despite concerns over elitism, the process for appointing justices is designed to focus on merit, legal expertise, and experience. The Judicial Appointments Commission (JAC) oversees the selection process, emphasizing professional qualifications over social background. The goal is to ensure that the most qualified individuals, regardless of their social class, are appointed to the Court.
3. Social Representation: The current composition indicates a lack of diversity in terms of socioeconomic class and ethnic background. Most justices come from privileged backgrounds, with a strong focus on individuals educated at independent schools and Oxbridge. This does not mirror the broad spectrum of the UK population, where a significant portion comes from state schools or other universities. Moreover, there has been no representation from minority ethnic groups within the Court as of 2021.
4. Impact on Public Confidence: The perception of elitism in the Supreme Court could affect public confidence in the judiciary. The lack of visible diversity, both in terms of ethnicity and socioeconomic background, could make it harder for the Court to command trust, especially from communities that feel underrepresented or disadvantaged in the judicial system.
Limitations
• Socially Representative Limitations: While appointments are intended to be based on merit, the system remains dominated by those from elite backgrounds. This suggests a systemic bias where individuals from non-elite backgrounds may find it more difficult to reach the upper echelons of the judiciary, despite the meritocratic system in place. This could be due to barriers in access to prestigious education or opportunities to gain the necessary legal experience.
• Age and Gender: The average age of the justices suggests a lack of younger representation, which could limit the inclusion of fresh perspectives and experiences. Moreover, the gender balance still leans towards a male-dominated judiciary, with only a few female justices, raising issues of gender diversity. Although there has been some progress in this area, the number of women on the Court remains low, especially considering the fact that 51% of the UK population is female.
Conclusion
While the Supreme Court has an independent and merit-based appointment system, concerns around elitism and the underrepresentation of broader societal demographics persist. The Court’s composition continues to be aligned with a narrow social class and remains less representative of the diversity found in the wider UK population. The lack of ethnic diversity, combined with the dominance of a select group of educational institutions, suggests that the Court still faces challenges in becoming a more socially inclusive and representative body. As the UK strives to become more diverse and inclusive, questions about the Supreme Court’s social legitimacy and public trust remain significant.
Three reasons why the UK Supreme Court was established
The Role of the Supreme Court and its Impact on Government, Legislature, and Policy Process
Part one:
The UK Supreme Court, established under the Constitutional Reform Act of 2005, plays a crucial role in interpreting and upholding the law, ensuring that government actions and legislative processes are conducted within the bounds of the constitution. Its creation aimed to address three longstanding issues:
1. Concerns over the incomplete separation of powers in the UK system.
2. Widespread criticism of the system under which Law Lords were appointed.
3. Confusion among the general public over the status, role, and work of the Law Lords.
Separation of Powers
A fundamental principle in governance is the separation of powers, which divides the state’s authority into three distinct branches:
• Legislative: The branch responsible for making the laws.
• Executive: The branch responsible for enforcing and executing policy (i.e., putting laws into effect).
• Judiciary: The branch tasked with interpreting and enforcing the laws, ensuring that the legislative and executive branches act within their constitutional limits.
This separation is vital in preventing tyranny, as it ensures no single branch becomes too powerful. However, the UK has traditionally operated under a partial fusion of powers, particularly evident in the fact that members of the executive (the government) sit within the legislature (Parliament). This fusion contrasts with the more distinct separation of powers seen in the US Constitution, where the executive, legislative, and judicial branches are clearly delineated.
The Role of the UK Supreme Court
The UK Supreme Court was established to address the imbalance and confusion created by the previous system, where the Law Lords were both the highest judicial authority and also members of the House of Lords, blending legislative and judicial functions. This was viewed as problematic for ensuring a clear separation of powers.
Key functions of the Supreme Court include:
• Interpreting and upholding the law: The Court acts as the final court of appeal in the UK, making binding decisions that interpret laws and set precedents.
• Ensuring the constitution is followed: It helps maintain the rule of law, ensuring that laws passed by Parliament and policies executed by the government are constitutional and within the powers granted to them.
• Judicial independence: The establishment of the Court also provided a clearer distinction between the judicial and legislative branches, allowing judges to operate with greater independence and reducing the potential for political influence.
Impact on Government, Legislature, and Policy
The establishment of the UK Supreme Court has had a significant impact on the workings of the government, legislature, and the policy-making process:
1. Impact on Government: The Supreme Court acts as a check on executive power, ensuring that government actions comply with the law and constitutional principles. This is particularly important in areas such as human rights and executive decisions that may affect individual freedoms. The Court can strike down policies or actions that violate constitutional principles, holding the executive to account.
2. Impact on Legislature: The Court provides interpretation and clarification of laws passed by Parliament, ensuring that legislation is consistent with the broader principles of the constitution. While Parliament is sovereign and can theoretically pass any law, the Supreme Court can interpret such laws in a way that ensures they are applied fairly and within the context of the constitutional framework. This is particularly important in areas such as human rights law, where courts may have to ensure that the rights of individuals are protected even when legislation might otherwise infringe upon them.
3. Impact on Policy Process: The decisions of the Supreme Court can have a significant influence on policy. By interpreting laws and applying them to specific cases, the Court can effectively shape policy. For example, decisions in areas such as immigration, privacy, and civil liberties can lead to changes in government policy, prompting new legislation or amendments to existing laws.
SYNOPTIC LINK
The UK is often described as operating under a partial fusion of powers, where the executive (government ministers) also sits within the legislature (Parliament). This creates overlap and potential conflicts between the roles of the different branches of government. In contrast, the US system of government enforces a clearer separation of powers, with distinct branches operating independently. However, the US system is also subject to overlaps, particularly through the system of checks and balances, where each branch has some degree of oversight and influence over the others.
This dynamic in the UK highlights the challenges of balancing effective governance with the principle of separation of powers, and the role of the Supreme Court is central to ensuring that this balance is maintained. The Court plays a crucial role in monitoring the actions of the executive and the legislature, ensuring that the rule of law is upheld and that government actions are consistent with constitutional principles.
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In conclusion, the UK Supreme Court was established to improve the separation of powers and address previous issues with the judicial system. It plays a vital role in shaping the government, legislative processes, and policy-making by ensuring that the laws are applied consistently and that the executive remains within the boundaries of the constitution. Despite operating within a system that includes a degree of fusion between the branches, the Court remains a critical institution in maintaining balance and accountability within the UK’s governance framework.
Three Key Functions Performed by the UK Supreme Court
Under the Constitutional Reform Act (CRA) of 2005, the newly established UK Supreme Court took on the judicial functions previously performed by the Law Lords. These key functions include:
1. To act as the final court of appeal in England, Wales, and Northern Ireland:
The UK Supreme Court serves as the highest court of appeal for cases originating from England, Wales, and Northern Ireland. This means that, after exhausting all other avenues of appeal in the lower courts, parties can bring their cases to the Supreme Court, which has the final say on the interpretation and application of law in these jurisdictions.
2. To hear appeals from civil cases in Scotland:
In addition to its role in England, Wales, and Northern Ireland, the Supreme Court also has jurisdiction to hear appeals in civil cases originating from Scotland. Although Scotland has its own legal system, the UK Supreme Court can intervene in cases of significant constitutional importance or where issues of broader legal interpretation arise that require a final ruling.
3. To hear appeals in cases where there is uncertainty and clarify the meaning of the law:
The Supreme Court also serves a critical function in clarifying the law. It hears cases where there is uncertainty or ambiguity in the interpretation of the law, helping to provide definitive rulings. This ensures that the law is applied consistently and uniformly, resolving legal uncertainties that may arise in various cases. These rulings often set important legal precedents, guiding future decisions by courts across the UK.
In summary, the UK Supreme Court performs essential functions in ensuring that the judicial system operates fairly and consistently, providing final decisions in crucial cases, clarifying legal ambiguities, and overseeing the highest levels of appeals across the UK.
Explain the Key Doctrines and Principles that Underpin the Supreme Court’s Work:
Key Doctrines and Principles that Underpin the Supreme Court’s Work
One of the foundational doctrines of the UK Supreme Court’s work is the rule of law, a concept famously articulated by constitutional theorist A.V. Dicey. He identified the rule of law as one of the “twin pillars” of the English Constitution, the other being parliamentary sovereignty. Dicey outlined three key elements, or “strands,” to demonstrate what equal justice under the law should look like in practice:
1. No one can be punished without trial: This principle asserts that no individual should face punishment unless they have had a fair trial. While this is a central tenet of the rule of law, it has occasionally been challenged in practice, particularly in cases of national security or terrorism. Since 2001, various measures (such as indefinite detention, control orders, and asset freezes) have been introduced that allow certain individuals, especially suspected terrorists, to be subjected to punitive measures without a trial. These exceptional cases raise questions about the limits of the rule of law in times of crisis.
2. No one is above the law and all are subject to the same justice: According to Dicey, this strand of the rule of law insists that everyone, including government officials and members of the elite, should be equally subject to the law. However, there are instances where this ideal does not fully apply. For example, certain individuals, such as the monarch, international ambassadors, and Members of Parliament (due to parliamentary privilege), enjoy legal immunities or privileges that effectively place them above the law in some respects. This creates a distinction between the theoretical principle and its application in practice.
3. The general principles of the Constitution result from the decisions of judges: Dicey’s third strand posits that case law (or common law) is a critical source of constitutional principles in the UK, developed through judicial decisions over time. However, the principle of parliamentary sovereignty means that any legal precedent set by judges can be overturned by an Act of Parliament. This demonstrates that, while judges play a significant role in interpreting and shaping the constitution, ultimately statute law holds greater authority, and parliament can override judicial decisions through legislation.
Conclusion:
The rule of law is central to the work of the UK Supreme Court, with the Court’s decisions often reinforcing or challenging these foundational principles. However, the application of the rule of law is not always absolute, and exceptions or limitations (such as those relating to national security, legal immunities, and parliamentary privilege) reflect the complexities and tensions inherent in balancing justice with other constitutional and political considerations.
Explain and analyse Judicial impartiality
Judicial Independence and Judicial Impartiality
The rule of law is a fundamental principle of the UK legal system, which mandates that judges operate with both judicial independence and judicial impartiality. These two principles are crucial to ensuring justice is administered fairly and without external influence. However, while closely related, they represent distinct concepts with different implications for the judicial process.
Judicial Independence refers to the principle that judges should be free from political control or interference. This independence is essential for ensuring that judges can make decisions based on the law and the facts of the case, without fear of repercussions from the government or other external powers. Judicial independence allows judges to apply the law fairly and impartially, without concern for how their decisions may affect their careers, reputation, or relationships with powerful political actors. It enables the judiciary to act as a check on the powers of the executive and legislature, thus maintaining the integrity of the rule of law.
Judicial Impartiality is the requirement that judges must operate without personal bias or preconceived opinions when making decisions. It demands that judges put aside personal beliefs, prejudices, or external influences to ensure that all parties are treated equally under the law. Judicial impartiality is crucial to maintaining public confidence in the justice system, as it assures the public that legal decisions are based on the merits of the case rather than on any personal or external factors.
Significance:
1. Separation of Powers: Judicial independence ensures that the judiciary can act as a separate and autonomous branch of government, thus preventing the concentration of power in any one branch. It reinforces the principle of separation of powers, ensuring that the judiciary can hold the other branches of government accountable without fear of retaliation.
2. Public Confidence in the Legal System: Judicial impartiality helps to maintain trust in the legal system. If judges are perceived to be impartial and neutral, the public is more likely to view the judiciary as legitimate and fair. It upholds the concept that everyone is equal before the law, which is essential for fostering social stability and justice.
3. Fair and Just Decisions: Both judicial independence and impartiality are necessary for fair legal outcomes. Judges who are independent can apply the law without external pressure, and those who are impartial can ensure that personal biases do not influence the decision-making process.
Limitations:
1. Potential for Judicial Bias: While judicial independence prevents external interference, it does not necessarily ensure judicial impartiality. Judges, like any individuals, may have personal views, biases, or prejudices that could affect their decisions. Despite being free from political control, judges may still allow these personal factors to influence their judgment, which can undermine the fairness of the judicial process.
2. Judicial Accountability: Judicial independence sometimes raises concerns about the lack of accountability for judges. While judges must be free from political pressure, there needs to be a system of oversight to prevent misuse of power or unprofessional conduct within the judiciary. Some argue that complete independence can lead to a lack of responsiveness to societal needs or public opinion.
3. External Influence in Practice: In some cases, judicial independence can be compromised by indirect forms of influence, such as public opinion, media pressure, or institutional bias. Although judges may not be overtly politically influenced, these external factors can subtly shape their decisions or the cases they choose to hear.
Conclusion:
Both judicial independence and judicial impartiality are crucial principles that support the integrity of the UK’s legal system. While judicial independence protects judges from external pressures, judicial impartiality ensures that decisions are made fairly and without bias. However, these principles are not without limitations, as judicial independence does not guarantee impartiality, and judges may still be influenced by personal biases. Maintaining both is essential for upholding the rule of law and public confidence in the judiciary.
Judicial Independence and impartiality / separation of powers / ultre vires and judicial review key points:
Judicial independence and impartiality:
1. Judicial independence is the notion that judges are free from government interference (i.e. they are independent).
2. This is largely maintained via an independent appointments process and permanent job security for judges. Salaries are set by an independent body, not the government.
3. Judicial impartiality or neutrality is the notion that judges are neutral/ objective when it comes to making their judgments and are not swayed by personal opinion or popular pressure. This is ensured by professional training and the requirements that UKSC judges must have considerable legal experience. However, the background of many judges is seen by some as unbalanced and thus harmful to true neutrality.
Separation of powers:
The judiciary is separate, both physically and in terms of personnel, from parliament and the government. This is seen as crucial to judicial independence and upholding the rule of law.
Ultra vires:
This means that everyone is subject to the law of the land, including the government. If governments or other public bodies are deemed by the courts to have exceeded their powers, their actions are declared ultra vires, i.e. beyond the power of the law and therefore illegal, and must be reversed. Such decisions are often made after the process of judicial review.
Judicial review:
A judicial review is a court proceeding in which judges review the legality of a decision or action made by a public body including the government. Any challenge is to the way in which a decision has been made, i.e. about processes, not the rights and wrongs of the conclusion reached.
What features of the UK system support judicial independence?
Judicial independence in the UK is based upon six main pillars:
- Security of tenure: retirement aside, judges are appointed for an openended 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.
Security of tenure
Judges are appointed for an open-ended term, with removal requiring a vote in both Houses of Parliament.
• Significance: Prevents political influence through threats of dismissal.
• Limitation: Judges can still be influenced by their own views and biases over time. - Guaranteed salaries
Judges’ salaries are paid automatically from the Consolidated Fund, preventing manipulation by politicians.
• Significance: Ensures judges are free from financial pressure or control.
• Limitation: Does not guarantee complete immunity from indirect political influence. - Contempt of court
The sub judice rule prevents public interference in legal proceedings.
• Significance: Protects judicial independence from external pressures during cases.
• Limitation: Can limit freedom of speech, raising concerns about censorship. - Growing separation of powers
The creation of the UK Supreme Court and downgrading of the Lord Chancellor enhances judicial independence.
• Significance: Strengthens the independence of the judiciary from the executive and legislature.
• Limitation: The partial fusion of powers still exists, and ministers sit in Parliament. - Independent appointments system
The Judicial Appointments Commission (JAC) ensures transparent, merit-based judicial appointments.
• Significance: Reduces political bias in the selection of judges.
• Limitation: The appointment process may still be influenced by government preferences. - Training and experience
Senior judges have extensive legal experience and high professional status.
• Significance: Judges are unlikely to compromise their integrity due to their legal standing.
• Limitation: High status may lead to detachment from public concerns or realities.
How is Judicial Impartiality Guaranteed?
Judicial impartiality cannot be fully guaranteed, as judges are human and may have personal biases. However, the rule of law requires that such biases do not influence decisions. This is achieved through four key measures:
- Anonymity
Judges generally operate outside the public eye and rarely comment on legal or political matters. Senior judges are expected to avoid defending their rulings publicly or criticising the government.
• Significance: Protects judges from external influence and political pressure.
• Limitation: Lack of transparency may reduce public understanding of judicial reasoning. - Political Activity Restrictions
Judges cannot campaign for political parties or pressure groups. Although they retain the right to vote, their political views should not become public.
• Significance: Prevents overt political bias in judicial decisions.
• Limitation: Judges may still hold private political views that subtly influence rulings. - Legal Justifications of Judgments
Senior judges must explain how their decisions are based on legal principles. UK Supreme Court decisions are published in full on the Court’s website.
• Significance: Ensures accountability and transparency in judicial decision-making.
• Limitation: Legal reasoning can be complex, making rulings difficult for the public to scrutinise. - High-Level Training
Judges undergo extensive training and professional regulation by the Law Society. Additional guidance and training can be provided where concerns exist.
• Significance: Promotes judicial professionalism and impartiality.
• Limitation: Training cannot completely eliminate unconscious bias.
Explain and analyse threats to judicial impartiality:
Threats to Judicial Impartiality
There are two key concerns regarding judicial impartiality:
- Lack of Diversity
Senior judges are often drawn from a narrow background—privately educated, Oxbridge-educated, white, middle-class men. This lack of diversity raises concerns about their ability to rule impartially when dealing with cases involving individuals from different social and economic backgrounds. The Judicial Appointments Commission (JAC) has done little to address this issue.
• Significance: A more diverse judiciary could enhance public confidence and fairness in the legal system.
• Limitation: Judicial appointments are based on merit, and increasing diversity may take time. - Growing Political Involvement
Judges have been increasingly drawn into political conflicts, especially after the Human Rights Act 1998. Some argue this undermines judicial impartiality, while others see it as evidence of greater judicial independence, as judges are more willing to challenge the government on civil liberties.
• Significance: Demonstrates judicial willingness to uphold the rule of law against government overreach.
• Limitation: Increased public scrutiny may pressure judges and influence their decisions.
Evidence of a lack of diversity among judges
Evidence of Judicial Diversity Issues
• Women underrepresented: 17% (2 out of 12) in the UK Supreme Court (UKSC) in 2021, 25% in the Court of Appeal.
• Lack of BAME judges: 0% in UKSC (2021), 8% of all judges (up from 6% in 2014).
• Decline in non-barristers: 32% of all judges (2020), down from 37% in 2014.
• Public school and Oxbridge dominance: 11 of 12 UKSC justices (2021) studied at Oxford or Cambridge.
Does a Lack of Diversity in the Judiciary Matter?
Yes
✔ Judges do not reflect modern British society.
✔ It limits cultural understanding in certain cases.
✔ Little improvement at the top in a decade.
✔ Can reduce public trust and lead to pro-establishment bias.
No
✘ Judges are chosen for expertise and merit, not representation.
✘ They apply law neutrally, not based on personal experience.
✘ Diversity is increasing at lower levels and will improve over time.
✘ No clear evidence of bias—judges have ruled against governments and protected minorities.
Significance & Limitations
• Significance: A diverse judiciary improves public trust and ensures fairer representation.
• Limitation: Appointments based purely on diversity could politicise the judiciary, risking independence.
DEBATE: Has the UK judiciary become more politicised in recent years?
Has the UK judiciary become more politicised in recent years?
Yes
• The Human Rights Act 1998 forces judges to assess the merit of laws, not just their application, drawing them into political debates.
• R (Factortame Ltd) v Secretary of State for Transport (1990) set a precedent allowing UK courts to suspend Acts of Parliament that contradict EU law, reducing parliamentary sovereignty.
• The creation of the Supreme Court and its relocation to Middlesex Guildhall increased media scrutiny of judges and made them more visible in public life.
• Politicians have publicly criticised judicial rulings, breaking the convention of judicial independence (e.g. the 2016 “Enemies of the People” headline).
✔ Significance: This highlights the judiciary’s growing role in checking government power, particularly in relation to civil liberties and executive overreach.
✘ Limitation: Frequent conflicts between judges and politicians risk undermining judicial neutrality, making courts appear politically motivated.
No
• The Judicial Appointments Commission (JAC) and the Supreme Court selection process have enhanced transparency, reducing political interference in appointments.
• The downgrading of the Lord Chancellor’s role following the Constitutional Reform Act 2005 has increased judicial independence from government control.
• The rise in judicial-government conflict is a positive development, as it ensures the courts remain a check on executive power rather than a sign of bias.
• Security of tenure and guaranteed salaries protect judges from political pressure, maintaining judicial independence.
✔ Significance: This suggests that the judiciary is not being politicised, but rather becoming more independent and effective in upholding the rule of law.
✘ Limitation: The increased judicial profile could still lead to perceptions of bias, especially when rulings oppose government policies.
Overall Judgment
While the UK judiciary’s role has evolved, leading to greater visibility and occasional political criticism, structural reforms like the JAC and the Constitutional Reform Act 2005 have bolstered judicial independence. Therefore, despite appearances, the judiciary remains largely independent, with increased interactions reflecting a robust system of checks and balances rather than true politicization.
The importance of judicial review
Judicial review is a fundamental aspect of the UK’s legal system, enabling higher courts to assess the legality of actions taken by public officials and bodies. While the UK Supreme Court cannot “strike down” Acts of Parliament due to parliamentary sovereignty and the absence of a codified constitution, it significantly influences the interpretation and application of laws through its judgments.
Key Points:
• Establishing Legal Precedent: Higher-tier courts, such as the Supreme Court and Courts of Appeal, have the authority to set legal precedents. Their interpretations of statutes become binding on lower courts, shaping the application of laws across the judiciary.
• Clarifying Legislation: Through judicial review, these courts elucidate ambiguous or unclear legislative provisions, ensuring laws are applied consistently and justly.
• Checks and Balances: Judicial review serves as a check on executive actions, ensuring that public officials and bodies do not exceed their legal authority or violate principles of administrative law.
Significance:
• Upholding the Rule of Law: Judicial review reinforces the principle that all actions by public bodies must be lawful, maintaining accountability within the government.
• Protecting Individual Rights: By reviewing administrative decisions, the judiciary safeguards individual rights against potential abuses of power by the state.
Limitations:
• Parliamentary Sovereignty: The inability to invalidate primary legislation limits the judiciary’s power compared to counterparts like the U.S. Supreme Court, which can strike down laws conflicting with the Constitution.
• Resource Constraints: The judicial review process can be time-consuming and costly, potentially limiting access for individuals seeking redress.
Comparison with the U.S. System:
In contrast, the U.S. Supreme Court possesses the authority to nullify legislation deemed unconstitutional, a power established in the landmark case of Marbury v. Madison (1803). This decision affirmed the judiciary’s role in interpreting the Constitution and invalidating conflicting laws, thereby asserting judicial supremacy in constitutional matters. 
In summary, while the UK judiciary cannot annul parliamentary statutes, its role in interpreting laws and reviewing administrative actions is crucial for maintaining legal integrity and accountability within the government’s framework.
Ultra Vires definition:
The doctrine of ultra vires, meaning “beyond the powers,” is a fundamental principle in UK administrative law. It ensures that public authorities and officials act within the legal powers granted to them. If they exceed these powers, their actions can be declared void through judicial review.
Although the ability to make ultra vires rulings is still an important weapon in the Supreme Court’s armoury, the power of the UK judiciary has been enhanced by two key developments in recent decades:
Key Developments Enhancing Judicial Oversight:
1. European Union Law: Before Brexit, EU law held supremacy over domestic UK law. This allowed UK courts to set aside national legislation conflicting with EU provisions, thereby expanding the judiciary’s role in reviewing parliamentary acts.
2. Human Rights Act 1998: Incorporating the European Convention on Human Rights into domestic law, this Act empowered courts to assess the compatibility of legislation with human rights standards. While courts couldn’t nullify primary legislation, they could issue “declarations of incompatibility,” prompting parliamentary reconsideration.
Significance of Judicial Review and Ultra Vires:
• Checks and Balances: The ultra vires doctrine reinforces the rule of law by ensuring that public bodies do not overstep their legal boundaries, maintaining a balance between different branches of government.
• Protection of Rights: Judicial review serves as a mechanism for individuals to challenge unlawful administrative actions, safeguarding citizens’ rights against potential abuses of power.
Limitations:
• Parliamentary Sovereignty: The UK Parliament retains the authority to enact or amend laws, potentially curtailing judicial oversight. Courts cannot invalidate primary legislation but can interpret and review administrative actions under existing laws.
• Resource Constraints: Engaging in judicial review can be costly and time-consuming, potentially limiting access for individuals seeking to challenge ultra vires actions.
Overall Judgment:
While the ultra vires doctrine and judicial review are pivotal in ensuring lawful administrative conduct, their effectiveness is tempered by parliamentary sovereignty and practical challenges in accessing judicial remedies.
Case Study: Reilly v Secretary of State for Work and Pensions (2016)
This case examined whether the Department for Work and Pensions (DWP) had acted ultra vires (beyond its legal authority) in implementing its ‘welfare to work’ scheme.
• Background: Caitlin Reilly argued that being required to work for a private company in exchange for benefit payments violated Article 4 of the European Convention on Human Rights (ECHR), which prohibits slavery and forced labor.
• Supreme Court Ruling (2013): The Court ruled that while the scheme did not amount to slavery, the DWP had acted ultra vires because it lacked parliamentary authorization for the program. This made the scheme unlawful.
• Government Response: The government quickly passed the Jobseekers (Back to Work Schemes) Act 2013, which retrospectively legalized the scheme.
• Court of Appeal Ruling (2016): The Court ruled that this retrospective legislation violated Article 6 of the ECHR (right to a fair trial). However, it also confirmed that Parliament had the final say on whether to act on this ruling.
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Significance
✔ Demonstrates the importance of judicial review – The courts acted as a check on executive overreach, preventing the DWP from implementing policies without legal authority.
✔ Highlights limits of judicial power – Although the courts declared the scheme unlawful, Parliament was able to override the ruling through retrospective legislation, reaffirming parliamentary sovereignty.
✔ Shows the impact of the Human Rights Act (HRA) 1998 – The ruling was influenced by ECHR protections, demonstrating how the HRA has expanded the judiciary’s role in reviewing government policies.
✔ Reflects the judiciary’s independence – The courts were willing to challenge government policy, reinforcing the principle of judicial independence.
✔ Raises concerns about executive power – The government’s ability to retrospectively change the law in response to judicial decisions raises questions about the fairness and effectiveness of legal constraints on executive action.
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Overall Judgment
The Reilly case underscores both the strengths and limitations of the UK judiciary. While the courts can check government overreach through judicial review, parliamentary sovereignty ultimately prevails, meaning the government can bypass unfavorable rulings through legislation. However, the declaration of incompatibility with Article 6 of the ECHR suggests that even when Parliament has the final say, judicial rulings can still shape public and political debate about government actions.
- Using the information provided, explain the concept of ultra vires.
Ultra vires means “beyond one’s legal authority.” It refers to situations where a government department, public official, or public body acts beyond the powers granted to them by law. In the Reilly v Secretary of State for Work and Pensions (2016) case, the Supreme Court ruled that the Department for Work and Pensions (DWP) had acted ultra vires by implementing its ‘welfare to work’ scheme without proper legal authorization from Parliament. This demonstrates how judicial review allows courts to ensure that government actions remain within legal boundaries.
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- What does the second paragraph of the case study tell us about the limitations on the power of senior judges?
The second paragraph highlights that judicial rulings can be overridden by Parliament, emphasizing the principle of parliamentary sovereignty. Although the Supreme Court ruled that the DWP’s scheme was unlawful, the government passed retrospective legislation (Jobseekers (Back to Work Schemes) Act 2013) to make the policy legal after the fact.
This demonstrates that while judges can declare government actions unlawful, they cannot directly prevent Parliament from changing the law to suit its needs. The Court of Appeal’s later ruling (that the retrospective law violated Article 6 of the ECHR) also shows that judges can highlight legal and human rights concerns, but ultimately, it is up to Parliament and the government whether or not to act on these rulings.
European Union law and the Supreme Court
The European Communities Act 1972 incorporated EU law into UK law, giving European laws precedence over conflicting UK statutes. This gave the UK judiciary, especially the Supreme Court, the power to interpret and enforce EU laws, but with some important developments over time.
The Factortame case established a precedent in UK law where UK courts could suspend UK statutes if they were found to be in conflict with EU law. This was an important shift in how UK courts exercised their power, as they were no longer just applying domestic law but were also required to consider EU law’s supremacy.
Case Study: Factortame
The Factortame case refers to a series of connected legal proceedings in which the European Court of Justice (ECJ) ruled that UK courts could suspend national law if it was in conflict with EU law. The Factortame case specifically dealt with the Merchant Shipping Act 1988, which was challenged by a Spanish-owned fishing company, Factortame Limited, that was trying to operate within UK fishing quotas.
The case resulted in the UK courts suspending the Merchant Shipping Act 1988, which had been passed by the UK government, because it violated EU law concerning the free movement of goods and services. The case marked a significant moment in the evolution of the UK’s judicial power in the context of EU law.
Case Study: Factortame
The Factortame case (1990) is a landmark series of decisions involving the conflict between UK domestic law and European Union (EU) law. It arose when the Spanish fishing company, Factortame Ltd, challenged the Merchant Shipping Act 1988 under EU law. The Act sought to restrict the use of UK fishing quotas by foreign-owned ships, requiring ships to be at least 75% British-owned. Factortame Ltd had re-registered its Spanish boats as UK vessels to circumvent the restrictions and continue benefiting from UK quotas.
The case revolved around the legal principle of supremacy of EU law. In this context, the European Court of Justice (ECJ) ruled that UK courts were obliged to suspend the Merchant Shipping Act 1988, because it conflicted with the EU’s regulations on the free movement of goods and freedom of establishment, which prohibit restrictions on non-national businesses and services. This decision effectively meant that, although UK domestic law would ordinarily prevail, in this instance, EU law took precedence, and the UK law was temporarily suspended while the ECJ made a final ruling on the matter.
The Factortame decision highlighted the growing influence of the European Court of Justice over the UK’s legal system and established a precedent for future cases where national laws conflicted with EU law. It underscored the need for national courts to respect and apply EU law, even when it meant suspending national statutes.
Significance:
• The case established that UK courts could suspend national legislation when it conflicts with EU law.
• It reinforced the supremacy of EU law, a central tenet of EU membership, and demonstrated that national laws could be overridden in the face of conflicting EU regulations.
• This case contributed to a shift in UK legal practices, showing the practical application of EU law within the UK’s legal framework, and solidified the role of UK courts in enforcing EU laws.
The Human Rights Act and the Supreme Court:
The Human Rights Act 1998 incorporated the European Convention on Human Rights (ECHR) into UK law, allowing citizens to bring cases under the Convention directly in UK courts rather than having to go to the European Court of Human Rights (ECtHR) in Strasbourg. This Act, which came into force in October 2000, has had a significant impact on the UK legal system by making human rights a more prominent part of domestic law.
Key points about the Human Rights Act and its significance:
• Incorporation of ECHR Rights: The Act brought most articles of the ECHR into UK law, allowing individuals to seek redress in UK courts if they believed their rights under the ECHR had been violated.
• Access to justice: UK citizens could previously only bring cases to the ECtHR in Strasbourg, but after 2000, they had the opportunity to do so directly through national courts, reducing the need for external legal action.
• Supremacy of Convention Rights: While the Act doesn’t allow courts to overturn primary legislation, it requires judges to interpret laws in a way that is compatible with human rights wherever possible, enhancing the protection of fundamental rights within the UK legal framework.
The Act also led to significant developments in judicial review, where courts have reviewed government decisions to ensure compliance with human rights standards. This has also resulted in more scrutiny of legislation and public policy, particularly regarding areas where human rights protections are involved.
Case Study: The Supreme Court and the Human Rights Act – Tigere v Secretary of State for Business, Innovation and Skills (2015)
Key events:
• Beaurish Tigere moved to the UK at the age of six, coming with her father who was on a student visa.
• After her father left the UK in 2003, Tigere stayed with her mother.
• Tigere’s immigration status was later discovered, but she was given temporary permission and discretionary leave to remain.
• Tigere went on to complete her A-Levels and gained a place at Northumbria University to study Business Management.
• However, she was denied a student loan because she couldn’t apply for ‘indefinite leave to remain’ in the UK until 2018.
• Tigere appealed the decision in 2015, arguing that being denied the loan violated her human rights under Article 2 (Right to Education) and Article 14 (Protection from Discrimination) of the European Convention on Human Rights (ECHR).
• The UK Supreme Court accepted her appeal, agreeing that the denial of the loan unjustifiably discriminated against her and negatively impacted her right to education.
• The Court ruled that the government’s decision to withhold the loan could not be justified and was in violation of her rights under the ECHR.
Legal Issue:
• Tigere appealed the decision, arguing that being denied a student loan violated her rights under Article 2 (right to education) and Article 14 (prohibition of discrimination) of the European Convention on Human Rights (ECHR).
Supreme Court Ruling:
• The UK Supreme Court accepted Tigere’s appeal in 2015.
• The court ruled that the discrimination she faced in not being eligible for student loans was unjustifiable under the ECHR.
• The court’s judgment highlighted that the denial of access to higher education was a disproportionate impact on Tigere’s rights and that this discriminated against her without sufficient justification.
Significance:
• This case demonstrates the power of the Human Rights Act 1998 in enabling UK citizens to invoke the European Convention on Human Rights (ECHR) directly in domestic courts.
• The judgment shows how the Supreme Court uses human rights principles to safeguard individuals against unjust discrimination, even in the context of immigration policy and access to education.
• The case also illustrates the role of UK courts in upholding human rights, even when this means challenging the government’s decisions or public policy, underlining the judicial review process.
This case emphasizes how the Human Rights Act allows for the legal protection of rights, such as the right to education and the protection from discrimination, when they are threatened by public policy.
The limitations of the Supreme Court’s power under the Human Rights Act:
Apologies for the oversight! Here’s the revised version with significance, limitations, and conclusion included.
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Simplified Bulletpoints:
• The Human Rights Act (HRA) does not have the same legal force as other similar documents, such as the US Bill of Rights, because it is not entrenched or superior to regular statute.
• HRA can be amended, suspended (derogated), or repealed like any other Act of Parliament.
• Derogation refers to a country’s exemption from following a law or regulation during times of national crisis (Article 15 of the European Convention on Human Rights).
• UK courts cannot strike down laws under the HRA but can issue a declaration of incompatibility if they find a law contradicts the HRA. This invites Parliament to reconsider the offending statute.
• Courts can use the HRA to establish common law precedent in cases where statute law is unclear or silent.
• The HRA also influences draft legislation by requiring Parliament’s Joint Committee on Human Rights to examine whether proposed laws are HRA-compatible.
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Significance:
• HRA’s influence on UK law: Although the HRA doesn’t allow UK courts to strike down laws, its ability to influence how laws are interpreted and to encourage Parliament to amend or reconsider laws based on human rights is highly significant.
• Precedent in common law: Courts’ ability to establish common law precedent using HRA provisions ensures that human rights principles continue to evolve within the judicial system, even when Parliament fails to act.
• Parliamentary scrutiny: The Joint Committee on Human Rights ensures that proposed legislation is scrutinized for human rights compatibility before it even reaches Parliament, shaping the legislative process from the start.
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Limitations:
• No power to strike down laws: The main limitation is that UK courts do not have the power to invalidate or strike down Acts of Parliament, unlike in some other jurisdictions (e.g., the US).
• HRA’s flexibility: The fact that the HRA can be amended or repealed at any time means it does not have the same constitutional protection as the US Bill of Rights or the European Convention on Human Rights (ECHR).
• Dependence on Parliament: The declaration of incompatibility is not a binding decision but only a suggestion, meaning it is still up to Parliament to amend the offending law.
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Conclusion:
The Human Rights Act 1998 has made significant strides in integrating human rights protections into UK law, influencing both the judiciary and the legislative process. However, its limitations—especially the lack of power to strike down laws—mean that the UK judiciary’s role in protecting human rights remains somewhat constrained. While it enables courts to influence laws and provides a channel for scrutiny, the ultimate power lies with Parliament. Nonetheless, the HRA’s indirect power through common law development and parliamentary scrutiny remains crucial in shaping the UK’s human rights landscape.
The changing character of judicial action in the UK:
• Judicial review allows senior judges to interpret laws and review decisions made in lower courts.
• Due to parliamentary sovereignty, UK judicial review is generally weaker than in the USA, where courts can strike down laws.
• However, in recent years, there has been debate over whether the UK judiciary has become more active in challenging government actions.
DEBATE
Has the UK judiciary had a greater impact on the work of the executive and parliament in recent years?
Has the UK judiciary had a greater impact on the work of the executive and parliament in recent years?
Yes
• The Constitutional Reform Act 2005 enhanced judicial independence by reducing the role of the Lord Chancellor and removing the UK’s most senior judges from the House of Lords.
• Significance: Judges are now more independent from the government, making it harder for the executive to influence judicial decisions.
• Limitation: Judicial independence does not necessarily mean greater judicial power; the doctrine of parliamentary sovereignty still limits the judiciary.
• The relocation of the Supreme Court to Middlesex Guildhall created a clearer separation between the judiciary and the government and gave judges a more public profile.
• Significance: The judiciary is now seen as a separate branch of government, reinforcing its authority.
• Limitation: This change was symbolic rather than legal—parliament remains supreme.
• The Human Rights Act 1998 (HRA) allows cases under the ECHR to be heard in UK courts, empowering judges to question Acts of Parliament and executive actions.
• Significance: Courts can challenge government decisions based on human rights violations.
• Limitation: Parliament can ignore ‘declarations of incompatibility’ and is not legally required to change laws.
• The Factortame case (1990) set a precedent allowing senior judges to suspend actions of both parliament and the executive when they breach EU law.
• Significance: This showed that the judiciary could override domestic law in favour of EU law, increasing its power.
• Limitation: After Brexit, EU law no longer applies in the UK, reducing the judiciary’s ability to challenge the government using EU law.
• The Maastricht Treaty (1992) expanded EU law, bringing UK judges into conflict with the executive and parliament over a wider range of policy areas.
• Significance: Judges had to interpret and apply EU law, increasing their influence.
• Limitation: With the UK leaving the EU, the judiciary’s role in enforcing EU law has been greatly reduced.
• The increasing judicial action forced the executive and parliament to ensure legislation was HRA and EU-compliant before passing it.
• Significance: Judicial review influenced law-making by pressuring the government to avoid legal challenges.
• Limitation: This was an indirect effect; parliament remains legally supreme and can still pass laws that contradict judicial rulings.
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No
• The relocation of the Supreme Court in 2009 was largely symbolic and did little to change the legal relationship between the judiciary, the executive, and parliament.
• Significance: While the move increased the court’s visibility, it did not increase judicial power.
• The HRA allows judges to issue ‘declarations of incompatibility,’ but parliament is under no legal obligation to change laws in response.
• Significance: Courts can highlight human rights violations but cannot force the government to act.
• Limitation: In some cases, political pressure has led to legislative changes, even if not legally required.
• Ministers can be ruled as acting beyond their powers (ultra vires), but they can pass retrospective legislation to legitimise their actions.
• Significance: Judicial review can challenge ministers’ actions.
• Limitation: The executive can use its majority in parliament to bypass court rulings, limiting judicial power.
• The impact of EU law on UK judicial power significantly declined after Brexit, reducing judicial influence over government decisions.
• Significance: The judiciary no longer has the authority to enforce EU law against the UK government.
• If the government chooses to amend or repeal the HRA, it would significantly limit the judiciary’s ability to challenge the executive or parliament.
• Significance: This highlights the judiciary’s dependence on parliamentary decisions for its powers.
What Brexit Means for the Power and Authority of the UK Supreme Court: Brexit and the Court’s power under the Human Rights Act
The UK’s departure from the EU affects the Supreme Court’s role, but it is important to distinguish between EU-related legal matters and those that are not.
Brexit and the Supreme Court’s Power Under EU Law
The UK Supreme Court no longer has to apply EU law since it is no longer under the jurisdiction of the European Court of Justice (ECJ). This means UK courts no longer have to follow ECJ rulings or suspend UK laws that conflict with EU law, as seen in the Factortame case (1990).
• Significance: Restores full sovereignty to parliament, preventing courts from overriding UK law based on EU obligations.
• Limitation: Retained EU law still exists, meaning some EU-derived laws remain in force unless repealed by parliament.
Brexit and the Supreme Court’s Power Under the Human Rights Act (HRA)
Criticism of “European judges” is often misdirected at the ECJ when in reality, many human rights cases involve the European Court of Human Rights (ECtHR). The ECtHR is separate from the EU and enforces the European Convention on Human Rights (ECHR), which the UK incorporated into domestic law through the HRA 1998.
Leaving the EU does not remove the UK’s obligations under the ECHR—only withdrawing from the Convention itself would achieve that. However, this is unlikely, as all European states except Belarus, Kazakhstan, and Vatican City are signatories.
• Significance: The UK Supreme Court retains authority over human rights cases based on the ECHR, and individuals can still appeal to the ECtHR.
• Limitation: If the HRA is repealed, UK courts would have less power to enforce human rights protections, though the UK would still be bound by the ECHR.
Key Distinctions Between the ECJ and ECtHR
• European Court of Justice (ECJ): Supreme court of the EU, deals with cases under EU law, based in Luxembourg.
• European Court of Human Rights (ECtHR): Established by the Council of Europe, hears cases under the ECHR, based in Strasbourg, not an EU body.
Conclusion
Brexit removes the Supreme Court’s power to enforce EU law, strengthening parliamentary sovereignty. However, it does not impact the Court’s role in human rights cases, as the UK remains bound by the ECHR. Future attempts to repeal the HRA could further weaken judicial oversight but would not remove the UK’s human rights obligations.
What Brexit means for the power and authority of the UK Supreme Court: Brexit and the Court’s power under EU law
Impact of Brexit on the UK Supreme Court
Leaving the EU had no direct effect on the HRA, ECHR, or ECtHR, but it did mean withdrawing from the Treaty of Rome (1957). This removed the European Court of Justice’s (ECJ) jurisdiction over the UK, ensuring that EU law no longer takes precedence over UK law.
Brexit affects the Supreme Court in three key ways:
• A significant portion of its recent casework involved EU law, which is no longer applicable.
• The Supreme Court no longer enforces EU law over UK law, reinforcing parliamentary sovereignty.
• With the ECJ no longer superior in some legal areas, the Supreme Court’s authority and status may be enhanced.
Significance: Brexit increases the autonomy of the UK Supreme Court, making it the highest legal authority in the country. The absence of an external court could give UK judges greater influence over constitutional matters.
Limitation: Constitutional expert Professor Vernon Bogdanor warns that Brexit creates a human rights gap in UK law. Without the ECJ enforcing rights protections, judges could take a more activist role, leading to clashes with parliament over judicial authority.
If the UK also withdrew from the ECHR, removing itself from both the ECJ and ECtHR, the Supreme Court’s power would grow even further. However, this could also leave it more vulnerable to government control, as there would be fewer external legal constraints on parliamentary decisions.
The Evolution of the UK Supreme Court
The Supreme Court’s willingness to rule on Boris Johnson’s 2019 prorogation of Parliament was a major turning point in its development. The Court ruled that Johnson’s decision to suspend Parliament was unlawful, reinforcing its role in checking executive power. This marked a significant expansion of judicial authority beyond what was originally expected when the Court was established under the Constitutional Reform Act 2005.
Although the Act primarily aimed to enhance the separation of powers—by removing the UK’s most senior judges from the House of Lords—there were early signs that the Court could develop a more assertive role. In 2006, before the Court had even opened, it was predicted that it would take time to establish itself in the public consciousness and define its relationship with Parliament and government.
Comparisons have been drawn with the US Supreme Court, which was not explicitly given its power of judicial review in the Constitution but instead asserted it through landmark cases like Marbury v. Madison (1803). Similarly, the UK Supreme Court may continue to carve out its authority over time, particularly as constitutional conflicts arise.
Significance:
• The 2019 prorogation ruling set a precedent for judicial intervention in political matters, demonstrating the Court’s willingness to challenge the executive.
• The Supreme Court has increasingly acted as a constitutional guardian, interpreting the law in ways that constrain government overreach.
• The growing influence of the Court suggests a shift towards a more activist judiciary, despite the UK’s tradition of parliamentary sovereignty.
Limitations:
• The Supreme Court cannot strike down legislation, unlike its US counterpart, as Parliament remains sovereign.
• Its authority depends on the government and Parliament accepting its rulings—there is no legal mechanism to enforce compliance.
• Critics argue that unelected judges should not interfere in political decisions, warning that judicial activism could undermine democratic accountability.
The Overall Impact of the UK Supreme Court + relevant cases:
Unlike the US Supreme Court, the UK’s highest court cannot strike down Acts of Parliament or force the government to comply with its rulings. The UK lacks a codified constitution, so its Supreme Court operates within a parliamentary sovereignty framework. Post-Brexit, the Court’s power remains focused on three key areas:
• Reviewing common law and case law precedents (‘judge-made law’).
• Making ultra vires rulings, ensuring public bodies act within their statutory authority.
• Issuing declarations of incompatibility under the Human Rights Act 1998 (HRA) when legislation conflicts with the European Convention on Human Rights (ECHR).
Despite its higher public profile since 2009, Lord Phillips’ early prediction that its role would be one of ‘form rather than substance’ has largely proven accurate. Even landmark cases identified by Lord Neuberger in 2014 did not significantly expand the Court’s authority beyond what the Law Lords (the Court’s predecessor) had before.
Key Cases
R v Horncastle & Others (2009)
• Focus: Hearsay evidence
• Significance: Confirmed that hearsay evidence could be used as a basis for conviction.
Al Rawi v The Security Service (2011)
• Focus: Secret hearings
• Significance: Allowed the use of secret intelligence evidence in courts.
Prest v Petrodel Resources Ltd (2013)
• Focus: Company and divorce law
• Significance: Established that company assets are generally separate from personal assets in divorce settlements.
R (HS2 Action Alliance Ltd) v Secretary of State for Transport (2014)
• Focus: EU law and parliamentary procedures
• Significance: Confirmed that EU directives did not require wider consultation on the HS2 project.
R (Nicklinson) v Ministry of Justice (2014)
• Focus: Right to die
• Significance: Ruled that Article 8 (right to private life) could not justify assisted suicide over the Suicide Act 1961.
Since Neuberger’s 2014 review, the Supreme Court has issued several further rulings that, while important, largely continue previous legal principles.
Sutherland v HM Advocate (Scotland) (2020)
• Focus: Right to privacy
• Significance: Upheld that covertly obtained evidence in child protection cases does not breach Article 8 (right to private life).
Begum v Special Immigration Appeals Commission (2020)
• Focus: Citizenship rights
• Significance: The Court of Appeal ruled that Shamima Begum had a right to return to the UK to challenge her citizenship removal. However, in February 2021, the Supreme Court overturned this decision, denying her return.
Case Study: Prorogation Ruling (2019)
The prorogation ruling of 2019 remains the Court’s most groundbreaking decision.
• Issue: Boris Johnson’s government used the royal prerogative to prorogue Parliament for five weeks during a critical phase of Brexit. • Ruling: The Supreme Court found this act unlawful as it frustrated Parliament’s ability to function, violating parliamentary sovereignty and democratic accountability. • Impact: The ruling invalidated the prorogation, allowing MPs to return to Parliament immediately.
This decision reinforced the Court’s constitutional role. As The Guardian noted, the Court was ‘flexing its muscles’, asserting Parliament’s primacy and positioning itself as a constitutional court.
Significance:
• The Supreme Court has gained greater visibility and influence in constitutional matters.
• The prorogation ruling demonstrated its willingness to check executive power and defend parliamentary democracy.
• The Court provides a key mechanism for judicial review, especially after Brexit.
Limitations:
• The Court cannot strike down Acts of Parliament, unlike in Germany or the US.
• Its rulings depend on government compliance—there is no enforcement mechanism.
• Some argue that the judiciary is becoming too political, raising concerns over judicial overreach.
While the UK Supreme Court has grown in stature, it remains fundamentally different from courts in countries with codified constitutions.
The Supreme Court’s Growing Authority and the Perceived Threat. “Too politicised threat”
Recent debates question whether the Supreme Court has become ‘too powerful’, blurring the traditional divide between lawmakers (politicians) and law interpreters (judges). Critics argue that judges increasingly behave like ‘politicians in robes’, influencing policy rather than simply applying the law.
However, this distinction has never been absolute. Senior judges have always played a key role in interpreting and clarifying the law, which inevitably influences how legislation is applied. This quasi-legislative role allows the Court’s common law rulings to shape legal precedent, sometimes functionally altering the law without Parliament enacting new statutes.
Quasi-Legislative Power
• The Supreme Court establishes precedent through common law, which can influence legal outcomes as much as legislative changes.
• Differences in interpretation over time can create significant shifts in the law, even without Parliament formally amending statutes.
Significance:
• The Court ensures laws evolve in response to modern legal challenges.
• Judicial independence prevents unchecked executive or legislative power.
Limitations:
• Parliament can override judicial decisions through new legislation.
• The Supreme Court cannot strike down Acts of Parliament, unlike in the US or Germany.
• The executive and media may challenge judicial authority, as seen after the 2019 prorogation ruling.
While the Court’s influence has grown, it remains constrained within the UK’s system of parliamentary sovereignty.
Explain and analyse The Unelected Nature of the UK Supreme Court
The Unelected Nature of the UK Supreme Court
The UK Supreme Court holds no more power than the unelected Appellate Committee of the House of Lords, which it replaced in 2009. While the unelected nature of the House of Lords has been criticised, this was never an issue for the Law Lords, nor is it for the Supreme Court.
Globally, top judges are rarely elected. Judicial independence relies on freedom from political pressure, ensuring they can interpret and apply the law fairly without fear of removal by popular vote.
The Roman poet Juvenal famously asked, “Quis custodiet ipsos custodes?” (Who will guard the guards themselves?). In the context of the Supreme Court, this highlights the necessary balance between judicial independence and accountability. While political accountability is often seen as essential in democracy, courts must operate beyond direct public influence to uphold the rule of law.
Significance:
• Judicial independence ensures courts can act impartially, free from political influence.
• Maintains legal consistency, preventing the short-term pressures of public opinion from affecting rulings.
• Aligns with global democratic norms, where top judges are typically appointed, not elected.
Limitations:
• Judges lack direct democratic legitimacy, leading to concerns over judicial overreach.
• Critics argue that an unelected judiciary making decisions with political implications could undermine parliamentary sovereignty.
• Judicial decisions can be challenged politically but not overturned democratically.
While unelected, the Supreme Court is essential for upholding the rule of law, requiring a level of institutional independence beyond direct public accountability.
The Growing Authority of the UK Supreme Court
The Growing Authority of the UK Supreme Court
Power is the ability to enforce decisions, while authority is the right to make them. Max Weber (1864–1920) identified three sources of authority:
• Traditional authority – based on customs and historical precedent.
• Charismatic authority – derived from personal qualities of a leader.
• Legal-rational authority – granted through formal processes, such as elections.
Although the UK Supreme Court does not perfectly align with Weber’s framework, it has arguably gained greater authority than the Appellate Committee of the House of Lords. Its creation and operation have reshaped how it is perceived by institutions, the media, and the public, increasing the acceptance of its rulings.
Factors Enhancing the Supreme Court’s Authority:
• More independent and transparent judicial appointments than the previous Law Lords.
• Stronger separation of powers, reinforced by the physical separation of the judiciary from Parliament.
• Increased public engagement, through public visits, an accessible website, and expanded media coverage.
Impact:
• Increased legitimacy due to a clearer judicial role and greater transparency.
• Stronger judicial independence, reducing political influence.
• Greater public awareness and trust in judicial decisions.
While the Supreme Court’s authority has grown, its power remains limited by parliamentary sovereignty and the UK’s uncodified constitution.
Summary:
Conclusions
When comparing the UK Supreme Court to its US counterpart, students often assume that the US Court’s greater status and power stem directly from Article 3 of the US Constitution. However, Article 3 actually focuses more on the structure of the federal judiciary, without explicitly granting judicial review, which was instead discovered and developed by the Court over time.
The UK Supreme Court, while lacking a codified constitution and having limited powers compared to its US counterpart, is nonetheless gaining status and authority in ways that echo the US experience. Its future trajectory will depend on how well it maintains the confidence and support of other political institutions and the public.
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Summary
• Judiciary: Refers to all judges in the UK, with primary focus on the UK Supreme Court in political discussions.
• Judicial Reforms: The independence of the UK judiciary has been enhanced by reforms to the judicial appointments process and the separation of powers following the creation of the UK Supreme Court.
• Supreme Court Powers: While the UK Supreme Court did not gain new powers beyond the Appellate Committee of the House of Lords, its status and authority have grown over time.
• Judicial Review: The Supreme Court has the power to establish common law through judicial review, particularly in cases where statute law is unclear or in conflict with the Human Rights Act 1998.
• Rule of Law: Judges must adhere to judicial independence (freedom from political control) and impartiality (setting aside personal bias) when applying the law.
• Defending Citizens’ Rights: The Supreme Court can protect citizens’ rights through ultra vires rulings (against government overreach) or by issuing a declaration of incompatibility under the Human Rights Act 1998.
