the supreme court Flashcards
why was the constitutional reform act introduced?
to guarantee independence of the judiciary
before the constitutional reform act
- 12 law lords were members of the Lords and neutral cross benchers
- the head of the Law Lords was Lord Chancellor, who had three roles (speaker of HOL, cabinet minister and was the most senior judge in the UK), member of all 3 branches of government
- law lord also appointed senior judges
after the constitutional reform act
- Lord Chancellor was no longer head of judiciary, this was now Lord Chief Justice
- Lord Chancellor could no longer speaker of the HOL
- the judges could no longer be dismissed on the basis of their decisions in court, only their acts of misconduct, and through a vote from both houses
the role of the supreme court
Judicial Review: establishing what legal powers government/ other bodies have, bodies like school, NHS etc. (e.g when a public body has acting ‘ultra vires’)
Interpretation of Law: confirmation of how all laws in the UK should be interpreted, they would confirm the meaning of statuate/common laws that aren’t 100% clear
Determine Human Rights: they are asked to review a citizens case and examine whether their claims are justified, which could lead to compensation or reversal of a decision
give one example of a case where the supreme court carried out judicial review
Miller v Secretary of State- refer to case study on notion
4 ways to maintain judicial neutrality
the rule of law: decisions must be made on the basis of the rule of law, it is crucial!
peer review: after a decision is made, it must be reviewed by at least 5 judges before it is finalised to prevent personal biases towards decison making
restrictions on group membership: judges are not allowed to join/follow a political party, but they can vote
training and experience: judges must be highly qualified and highly experienced, so that they are accustomed to the idea of neutrality
are judges truly independent and neutral? (arguments for)
- the constitutional reform act created independence
- judges can’t be removed as a result of their decisions
- cannot be threatened with a loss of income, even if politicians are unhappy with decisions being made
- cannot be bribed as an independent body decides their pay
are judges truly independent and neutral? (arguments against)
- neutrality is challenged as they have very narrow social backgrounds
- it can be argued that the supreme court has too many lawyers who favour rights over law and order
- there is a risk of politicians trying to change the supreme court, for example, when Johnson made a proposal for each justice to be confirmed by Parliament, this would politicise court
what is the Terrorist Asset Freezing Act 2010 and why was it passed?
- it gave Parliament the power to freeze terrorist suspects bank assets
- it was passed because the Supreme Court didn’t agree with Gordon Browns idea to freeze terrorist suspects assets, so later on that year, it was passed to give Parliament the power to do so, but the Supreme Court couldn’t do anything about it
why could it be seen that Parliament have more power than the Supreme Court over the Human Rights Act?
the Human Rights Act wasn’t entrenched, meaning Ministers could change or abolish the Act. Johnson had spoken about replacing it with the Bill of Rights. this would increase the power of Parliament and decrease the power of the judiciary
what is elective dictatorship?
when the government dominates Parliament, often done through a large majority
how was an elective dictatorship unsuccessful?
the court challenged the authority of government in Johnson’s defeat in 2019 when he tried to prorogue parliament
ways to maintain judicial independence
what is security of tenure?
judges can’t be dismissed from decisions they make. Therefore judges can make decisions without fear of dismissal, even if these decisions offend government
ways to maintain judicial independence
what is the rule of sub judice?
no servant of government can interfere or comment on any case in court. This would prevent political pressure being put on judges
ways to maintain judicial independence
what is independent appointments?
since 2005, appointmnets are done independently from government
what is the importance of training and experience in the supreme court?
judges must be highly qualified and highly experienced, so that they are accustomed to the idea of neutrality
how does judicial pay keep the supreme court neutral?
to avoid bribery/ influence through pay, judges salaries are decided by an independent body
what is an ultra vires?
an action taken without legal authority when it is needed
how is judicial review an important role?
it ensures the government does not overstep its powers, and it asserts the rights of citizens
how judicial review has been applied in the UK
acting ultra vires: R (Miller) v The Prime Minister 2019
in 2019, Bojo decided to prorogue parliament, many said this was an excuse for him to extend the deadline for Brexit
but Gina Miller brought a case with lots of support, arguing that by suspending parliament, the PM was exceeding his powers and acted illegally, which the Supreme Court agreed with, leading to parliament no longer being prorogued
the composition of the supreme court
the appointment process
- vacancy occurs (retirement, removal or a justice stepped down)
- the lord chancellor must convene a special commission with the president of the SC, another UK judge and a representative of each of the 3 legislative bodies in the UK.
- position is advertised by the commission
- the commission carries out interviews withr shortlisted candidates
- the commission wil produce a report of a recommendation
- lord chancellor may accept or reject recommendation
- once accepted, the name is passed onto PM, then to the Monarch for formal approval
how does the supreme court influence parliament?
- Parliament is sovereign, meaning it can do whatever it wants to pass any law, the SC can only pass opinion on law and recommend change
- a lot of the supreme courts power at the moment relies on the Human Rights Act but this can be repealed and replaced,like how the conservatives in 2015’s manifesto stated that they wanted to replace the human rights act with the british bill of rights
- overall, Parliament has more powers than the supreme court
how does the supreme court influence the executive?
- up until the 1970s, the supreme court was seen as servants of the state rather than an equal partner
but this concept changed over time due to:
* the rise in liberal ideology
* the constitutional reform act 2005, improved the indpendence of the judiciary
* the passage of the human rights act 1998
so now, the supreme court no longer see themselves as a subordinate to the judicary and they can confidently challenge government
who can establish right better? SC or executive?
the claims of government
- executive is elected and accountable, judges aren’t
- executive can respond to public opinion
- executive has responsibility to protect citizens
- executive has a clear mandate to run the country and protect citizens
