The Judiciary

Question 1

What section and what act introduced the Supreme Court?

Answer 1

Section 23 of the Constitutional Reform Act 2005.

Question 2

What did the Times say about the difference made by the introduction of the Supreme Court?

Answer 2

‘A new constitution is being created in the United Kingdom. Yet few care to notice… Fundamental constitutional reforms will take effect at the beginning of October. The House of Lords will lose a judicial role that it has exercised in different ways over six centuries and, for the first time, the United Kingdom is to have a Supreme Court’.

Question 3

What did Engel say about the difference made by the introduction of the Supreme Court?

Answer 3

‘Until four years ago Britain’s highest court sat across the road, as the appellate committee of the House of Lords. In theory this sat in public too, but its quarters were so cramped and access so complicated it might have been easier to storm Fort Knox… Theorists had long argued that the old system was an absurdity an affront to separation of powers’

Question 4

What did Pannick say about the difference made by the introduction of the Supreme Court?

Answer 4

‘I very much doubt that a new home and a new name are going to change the substantive decisions of the senior judiciary… the Appellate Committee has long acted as an independent court. Indeed, I cannot remember any recent case in which the constitutional character of the Appellate Committee had any impact on its performance.’

Question 5

Describe the Judicial Committee of the Privy Council

Answer 5

Sit in the Supreme Court building - highest court of appeal for certain Commonwealth countries, oversea territories, and crown dependencies.

Question 6

What does Montesquieu say about the separation of powers?

Answer 6

‘When the legislative and executive powers are united in the same person, in the same body of magistrates, there can be no liberty… There would be an end of every thing, were the same man, or the same body, whether of the nobles or of the people, to exercise those three powers, that of enacting laws, that of executing the public resolutions, and of trying the causes of individuals.’

Question 7

What did R v HM Treasury, ex parte Smedley (1985) say about the separation of powers?

Answer 7

‘Although the United Kingdom has no written constitution, it is a constitutional convention, of the highest importance that the legislature and the judicature are separate and independent of one another’

Question 8

Talk about judicial independence in the UK using legislation.

Answer 8

The Lord Chancellor, other Ministers of the Crown and all with responsibility for matters relating to the judiciary or otherwise to the administration of justice must be upheld the continued independence of the judiciary (Constitutional Reform Act 2005 Act s 3).
Similar provisions in Justice (Northern Ireland) Act 2002 and Judiciary and Courts (Scotland) Act 2008.

Question 9

What does Elliot say about Judicial independence and power?

Answer 9

‘Judicial power, in any rule of law-based system, is a given. But how much is too much?…the UK system, lacking allocations of institutional power that are authoritatively fixed in place by a constitutional text, depends upon institutions interacting in a way that facilitates the emergence (and sometimes the evolution) of a form of constitutional equilibrium’

Question 10

What did R (Purdy) v DPP (2006) say about judicial legislation?

Answer 10

‘It must be emphasised at the outset that it is no part of our function to change the law in order to decriminalise assisted suicide. If changes are to be made, as to which I express no opinion, this must be a matter for Parliament … Our function as judges is to say what the law is and, if it is uncertain, to do what we can do to clarify it’

Question 11

Talk about the role of the Lord Chancellor pre 2005 and post 2005.

Answer 11

Pre 2005 contradictory role: member of Cabinet, head of the judiciary (E&W), Speaker and member of the House of Lords
Constitutional Reform Act 2005 – significant changes – the Lord Chancellor is now head of the Ministry of Justice but the head of the judiciary (in E&W) is the Lord Chief Justice (s 7 CRA 2005), and the House of Lords elects its own Speaker

Question 12

What did Rosenberg say about the reforms over the Lord Chancellor?

Answer 12

‘Turning the lord chancellor into just another politician was indeed an obvious modernisation – and one I used to favour. But its disadvantages are all too obvious now. The lord chancellor had evolved over the centuries into a uniquely valuable constitutional pivot. Wrenching it out of the system a decade ago was not a wise thing to do.’

Question 13

What did Grayling say about the Lord Chancellor not being a lawyer?

Answer 13

‘My view is that it is a positive benefit for the Lord Chancellor not to be a lawyer. The reason I say that is, certainly at this moment in time, when we are having to take and would be taking difficult decisions regardless of the situation, if we had a distinguished member of the House of Lords occupying the traditional role of Lord Chancellor overseeing the courts today, there would still be the same financial pressures that my department and my team are currently facing. I think that not being a lawyer gives you the ability to take a dispassionate view: not from one side of the legal profession or the other, not from the perspective of the Bar, not from the perspective of the solicitors’ profession and not from the perspective of the legal executives. As long as you take very seriously the duty to uphold the principles I talked about earlier—uphold the independence of the judiciary, uphold the independence of our courts—I think there are benefits in not having a lawyer. It does not mean a lawyer cannot do the job, but it is really important to say I think there are benefits to having a non-lawyer in the job as well.’

Question 14

What is the role of the Advocate General for England and Wales?

Answer 14

Represents the Government in court, provides legal advice to Cabinet and represents the UK in devolution disputes re Wales

Question 15

What is the role of the Advocate General for Scotland?

Answer 15

advice to UK government on Scots law; UK interests in Scottish devolution cases

Question 16

What did Griffith argue about judicial appointments?

Answer 16

‘Judges are appointed and promoted by the most senior judge, advised by other senior judges. The system is self perpetuating and it would be remarkable if the products were not homogeneous’

Question 17

What did Laski say about reforming the appointment of judges by election?

Answer 17

‘For the election of judges by popular vote there is nothing to be said. Insofar as its underlying assumption is the belief that the people should choose those by whom they are to be governed, it omits to note the vital fact that the qualifications for judicial office are not such as an undifferentiated public can properly assess. … Knowledge of the law, the balanced mind, the ability to brush aside inessentials and drive to the heart of a case, that a candidate will possess these qualities can, at best, be known only to a few.’

Question 18

What does section 27(8) of the Constitutional Reform Act 2005 say about the appointment of judges for the Supreme Court?

Answer 18

“In making selections for the appointment of judges of the Court the [Judicial Appointments] commission must ensure that between them the judges will have knowledge of, and experience of practice in, the law of each part of the United Kingdom”.

Question 19

What does Section 33 of the Constitutional Reform Act 2005 say?

Answer 19

A judge of the Supreme Court holds that office during good behaviour, but may be removed from it on the address of both Houses of Parliament.

Question 20

What is the statutory retirement age for judges? What act does this come from and how does it differ from the United States?

Answer 20

70 - 75 for appointments pre 1995, which comes from the Judicial Pensions and Retirement Act 1993. In the United states there is no retirement age.

Question 21

What requirement is placed on the Judicial Appointments Commission when appointed judges from Section 64 of the Constitutional Reform Act 2005?

Answer 21

The Commission, in performing its functions under this Part, must have regard to the need to encourage diversity in the range of persons available for selection for appointments.

Question 22

What does Baroness Hale say about gender diversity in the judiciary?

Answer 22

‘Only 26.6% of the upper tribunal judiciary are women, though 11% are BME. Only 15.5% of High Court judges are women and 4.5% BME; 10.5% of Court of Appeal judges are women and no BME; none of the five heads of division is a woman or BME; and in the Supreme Court there is still only me and the only ethnic minorities we have are the Scots and the Irish. … it is an uncomfortable truth that we are out of step with the rest of the world, at least in the gender of our judges. The average across the countries in the Council of Europe is 52% men and 48% women.’

Question 23

What does Lord Sumption say about diversity?

Answer 23

‘Of course, the balance of qualities required by the judiciary as a whole is relevant for some purposes. It is, for example, perfectly legitimate under the current legislation to select candidates with an eye to achieving a proper balance between, say, chancery specialists and criminal lawyers, or between commercial lawyers and general common lawyers. But this approach is simply not available when it comes to achieving a satisfactory balance between men and women or between different ethnic groups. … Racial identity or gender are not relevant to a candidate’s ability to do the job.’

Question 24

What does Lord Neuberger say about diversity?

Answer 24

“The country must have the best judges possible, and merit is therefore a standard which cannot be undermined. Diversity is sometimes said to be the enemy of merit. I do not agree: provided that diversity is properly invoked, it is not merely consistent with merit: it reinforces merit. I have already explained that the more inclusiveness we have the bigger the pool of potential judges, and the bigger that pool the higher the quality of judges. In addition to that, a more diverse judiciary gives greater confidence in the judicial system. I am a bit sceptical about the notion that female, BAME or gay judges tend to think differently from male, white or straight judges, but they often undoubtedly have different experiences which bring valuable different perspectives to bear on problems.”

Question 25

What does Thomas LCJ say about quotas for diversity?

Answer 25

“Now I will answer “Do I believe in quotas?” I believe as long as one has taken positive action and one appreciates that results will come and they are coming, I believe quotas are not necessary and I think there are huge disadvantages in them and other proposals that, in a sense, upset what is probably regarded as the finest judiciary in the world and so I think that as long as we are doing something that achieve results and doing something we certainly are.”

Question 26

What does Bindman and Monaghan say about quotas for diversity?

Answer 26

“We are persuaded that a quota system is now necessary to ensure the fair and proportionate representation of women and other minorities at senior level in the judiciary. Quotas are already accepted in the United Kingdom. They have been introduced into other areas of public life. The Equality Act 2010 allows for political parties when selecting candidates for political office to reserve places for candidates from underrepresented groups, where that is a proportionate means of addressing that underrepresentation.”