The Supreme Court Flashcards
The composition of the supreme court
-The Supreme Court has a precedent – the power to hear appeals and review the action of other public bodies to establish new rules that affect not only the case but also subsequent cases.
-UK judiciary does not exist under a single body:
-Scotland and Northern Ireland operate under different legal arrangements from Wales and England.
-All three systems is the part played by the UK supreme court = highest court of appeal in England and Wales, court of sessions in Scotland, and court of appeal in Northern Ireland.
Precedent in action - R vs Jogee (2016)
-10 June 2011, Paul Fyfe was stabbed to death by Hirsi and Jogee.
-Jogee did not stab Mr Fyfe but encouraged Hirsi.
-Crown Court found them both guilty under the ‘joint enterprise rule’ – any individual part of a group that committed an offence could be convicted for that crime.
-Jogee appealed this decision to the Supreme Court. The Court changed the rules = no longer enough to be present at a crime there must be intent, encouragement, and assistance.
-Jogee’s sentence was reduced from 20 to 18 years.
Why the supreme court was established
-The Constitutional Reform Act 2005 reduced the power of the Lord Chancellor and placed most senior judicial appointments into the hands of a new, independent Judicial Appointments Commission.
-The highest court of appeal before 2099 was the Appellate Committee of the House of Lords.
-The three issues that results in the Constitutional Reform Act are concerns over the incomplete separation of powers, critiques of the system which senior judges were appointed and confusion over the work of the Law Lords.
Functions the supreme court performs
-The new UK Supreme Court took on most of those judicial roles previously performed by the Law Lords.
-It acts as the final court of appeal and clarifies the meaning of law in cases where it is uncertain.
How supreme court judges are appointed
-Appointments to the senior judiciary were made by the monarch on the advice of the Prime Minister and the Lord Chancellor.
-Problems with the old methods of appointing senior judiciary were that the system lack transparency, undermined the separation of powers, and resulted in a senior judiciary drawn from a narrow social circle.
-The Judicial Appointment Commission was created in hope that the change would enhance the separation of powers and result in a senior judiciary that was more socially representative of the population, as set in the Constitution Reform Act.
-To be considered for an appointment to the Supreme Court today, you must have either held high judicial office for at least 2 years or been a qualifying practitioner for 15 years.
Does the supreme court ‘look like the UK’?
-People have argued that the composition of the Supreme Court is elitist due to the qualifications for office and the importance of the role.
-Most Supreme Court justices attended ‘Oxbridge’ and independent/grammar schools. 91% compared to 8% of the public.
-The Supreme Court is not entirely socially representative of the broader population
Key doctrines and principles that underpin the supreme courts work
The Rule of Law
-A key doctrine in the UK constitution where justice is guaranteed to all.
-A.V Dicey: rule of law and parliamentary sovereignty are the ‘twin pillars’.
-3 main strands:
-No one can be punished without trial (e.g. terrorists).
-No one is above the law, and all are subject to the same justice (e.g. monarch, MPs, and parliamentary privilege).
-The general principles from the constitution result from judges’ decisions rather than from parliamentary statute (legal precedent can be overturned by parliament).
Key doctrines and principles that underpin the supreme courts work
Judicial independence
-The principle that those in the judiciary should be free from political control. Allows judges to ‘do the right thing’ without consequences.
-‘Security of tenure’ enjoyed by judges: judges are appointed from an open-ended term and must retire by the age of 75.
-Guaranteed salaries paid from the Consolidated Fund: salaries are classified as ‘standing services’ and therefore automatically paid from the fund.
-The offence of contempt of court: sub judice rules prevent individuals from speaking out publicly during legal proceedings; ensures justice is administered fairly.
-Growing separation of powers: downgrading of Lord Chancellor and creation of a new UK Supreme Court greater separation between senior judiciary and other branches.
-Independent appointments system: independent JAC brought greater transparency to judicial appointments and addresses concerns that the system is politically bias.
-Training and experience of senior judges: most senior judges served ‘apprenticeships’ as barristers and come to bench having achieved a certain status.
Key doctrines and principles that underpin the supreme courts work
Judicial neutrality
-Where judges operate impartiality in their administrations of justice, an essential requirement of the rule of law.
-The relative anonymity of senior judges: judges have traditionally operated way from the public eye. Judges rarely speak out on issues of law publicly.
-Restriction on political activity: judges are not supposed to campaign on behalf of a political party. They have the right to vote but this should not be a matter of public record.
-Legal justifications of judgements: senior judges are expected to explain how their decisions are rooted in law; this makes it less likely that senior judges will be guided by personal bias.
-High level training: senior judges commonly serve for many years as barristers before taking to the bench, their elevation to higher ranks of the judiciary reflects a belief that they can put personal bias to one side.
Threats to judicial neutrality
-Narrow recruiting pool from where senior judges have been drawn.
-Most judges are older, white men from similar socioeconomic and educational backgrounds.
-Can they be neutral if their life experiences are so different to that of the public?
-JAC appears to have done little to solve the problem.
-Senior judges drawn in a political fray in recent years e.g. Human Rights Act 1998.
-Politicisation of the judiciary. (Politicisation is where individuals traditionally seen as being above the political fray, are dragged into it. Some see the way in which UK judges were drawn into areas of political controversy in the wake of the HRA 1998 as evidence).
-Conflict between politicians and senior judiciary.
The power of the supreme court
Judicial review
-Judicial review is the process where judges review the actions of public officials or public bodies to determine whether they have acted in a manner that is lawful.
-Involves reviewing cases in lower courts.
-Less significant in comparison to the US.
-In ultra vires cases, they act beyond their authority.
-Review grew greatly with two key developments:
-Growing importance of EU law.
-European Courts of Human Rights.
EU Law and Brexit
-European Communities Act 1975 – incorporate Treaty of Rome into UK Law.
-EU law precedence over UK law.
-Supreme court justice Lord Mance – parliament gave European Court Justice a blank cheque when it drafted the ECA in such a way to give EU a higher status.
-UK government held accountable by the ECS.
-Factortame (1990): UK courts permitted to suspend UK law that violated EU law but disappeared on 21st of January 2021, end of Brexit transition power.
Human Rights Act 1998 and Brexit
-Pre-1998 cases on HRA were heard in the European Court of Human Rights.
-Came to force October 2000 – UK citizens pursue cases under ECHR through UK court as opposed to the ECHR.
-HRA based on Council of Europe’s ECHR rather than EU law, it is not superior to parliamentary statute.
-Parliament is not obliged to amend the offending statute.
-HRA shows the extent of ultra vires power and limitations whilst demonstrating the extent of the judiciary’s power over the ECHR.
The overall impact of the UK supreme court
-Impossible for the UK Supreme Court to strike down Acts of Parliament or move against Parliament due to parliamentary sovereignty.
-The UK Supreme Court is limited to 3 main areas:
-Reviewing and revisiting earlier legal precedent.
-Making ultra vires rulings where the court judges that public bodies have acted beyond their statutory authority.
-Issuing ‘declarations of incompatibility’ under the Human Rights Act 1998.
-In 2014, Lord Neuberger identified 5 key cases that do not represent a significant departure from what the Law Lords have done previously:
-2009 – R V Horncastle & others – Hearsay evidence.
-2011 – Al Rawi V The Security Service – Secret hearing.
-2013 – Prest V Petrodel Resources Ltd – company law & divorce law.
-2014 – R(HS2) V Secretary of State Transport – EU directives & parliament.
-2014 – R V Ministry of Justice – right to die.
-It can also be argued that since 2020, the court cases that have passed have not been much different to what the Law Lords have done previously:
-Sutherland V HM Advocate – limitations on the right to privacy.
-Begum V Special Immigration Appeals Commission – right to challenge the withdrawal of British Citizenship.
Is the supreme court too powerful?
-Quasi-legislative: involves making rules that must be obeyed but are not laws.
-The criticism of the unelected nature of the Supreme Court is misguided because the UK Supreme Court has no more power than the Appellate Committee of the House of Lords than it replaced in 2009.
-It is rare for those in senior judicial positions worldwide to be elected.
-Max Weber’s 3 sources of authority:
-Traditional authority based on established traditions and customs.
-Charismatic authority based on the characteristics of leaders.
-Legal-rational authority granted by a formal process, such as an election.
-It could be argued that the new court nonetheless possesses greater authority than the body it replaced because the UK Supreme Court has no more formal power than that held by the Appellate Committee of the House of Lords and could not be said to ‘tick’ any of Weber’s boxes.
-Factors that have enhanced the Supreme Courts authority:
-A more independent and less opaque appointments process than that which applied to the Law Lords.
-A clearer separation of powers accompanied by a clear physical separation between legislature and judiciary.
-An ongoing process of ‘demystification’ – with public visits, an intelligible website and enhances coverage in the mainstream media.
