The Supreme Court

Question 1

Does the UK judiciary exist as a single body?

Answer 1

No
Scotland and N.Ireland operate under different legal arrangements than England and Wales; but all have UK Supreme Court which acts as the highest court of appeal.

Question 2

Who was the highest court of appeal before the Supreme Court was established?

Answer 2

Comprised of 12 Law Lords who sat in the Appellate Committee of the House of Lords.

Question 3

How and why was the UK Supreme Court established?

Answer 3

Established under the Constitutional Reform Act (CRA) 2005 due to issues regarding:

• concerns over incomplete separation of powers, specifically the position of Lord Chancellor and presence of the Law Lords in the upper chamber of legislature.
• criticism of opaque system which senior judges such as Law Lords were appointed.
• confusion over the work of the Law Lords, failure to understand the distinction between House of Lords legislative and judicial functions.

Question 4

Functions of the Supreme Court.

Answer 4

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

Question 5

Briefly explain the makeup of the UK supreme court in 2017.

Answer 5

lacks ethnic diversity, gender diversity and age diversity.

e.g. one baroness

Question 6

What is the key doctrine and principle that underpins the work of the Supreme Court?

Answer 6

The rule of law

• Justice guaranteed to all
• A.V Dicey argues the rule of law has 3 strands
  1) No once can be punished outwith trial; BUT not always work in practice e.g. prevention of terrorism Act
  2) No one is above the law and all are subject to same justice; although hold true in all liberal democracies, in UK the monarch, MPs and foreign ambassadors (-diplomatic immunity) have been above law.
  3) The general principles of the constitution result from the judges decisions rather than from parliamentary statute; BUT any legal precedent can be simply overturned by the means of an Act of Parliament.

Question 7

Explain judicial independence.

Answer 7

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

Question 8

Explain judicial neutrality.

Answer 8

• Judicial neutrality is where judges operate impartially (without personal bias) in their administration of justice.
• essential requirement of the rule of law.

Question 9

How is judicial independence maintained?

Answer 9

• ‘Security of tenure’ enjoyed by judges, appointed for open-end term, limited only by retirement age of 75 which means politicians cannot seek to bring influence to bear by threatening to sack or suspend them.
• Guaranteed salaries paid from the Consolidation Fund. politicians are unable to manipulate judges’ salaries as way of controlling them.
• The offence of contempt of court; prevented from speaking out publicly during legal proceeding ensures that justice is administrated fairly.
• Growing separation of powers; between senior judiciary and other branches of gov.
• Independent appointments system; the Constitutional Reform Act 2005 saw creation of JAC which brought greater transparency to the process of appointment.
• Training and experience of senior judges; most senior judges have a status within profession and therefore it is argued that individuals take pride in their legal standing and unlikely to defer politicians where would be seen to compromise their judicial integrity.

Question 10

How is judicial neutrality guaranteed?

Answer 10

• The relative anonymity of senior judges.
• Restriction on political activity
• Legal justification of judgement.
• High-level training.

Question 11

Why is judicial review in the UK generally seen as less significant?

Answer 11

Due to the doctrine of parliamentary sovereignty and supremacy of statute law.

Question 12

What are the two key developments that have caused judicial review in the UK to grow significantly?

Answer 12

• the growing importance of the European Union Law

- the elevated status given to the European Convention on Human Rights (ECHR) under the Human Rights Act 1998.

Question 13

What was the simple change under the European Communities Act 1972?

Answer 13

UK incorporated Treaty of Rome which gave European laws precedence over conflicting UK statutes, whether past or present.

Question 14

How are UK courts able to suspend UK statutes that appear to be in violation of EU law?

Answer 14

The Factortame case 1990 - although will disappear after Brexit.

Question 15

Why is the Human rights Act not superior to parliamentary statute?

Answer 15

Because it is based on the Council of Europe’s ECHR rather than on EU law.

Question 16

How is the UK Supreme Court’s power limited?

Answer 16

• revisiting and reviewing earlier legal precedent established under common law and case law (judge-made law)
• making ultra vires rulings where the court judges that public bodies have acted beyond their statutory authority.
• addressing disputes arising under EU law.
• issuing ‘declarations of incompatibility’ under the Human Rights Act 1998

Question 17

What did Lord Neuberger say about the Supreme Court?

Answer 17

it changed location and appearance but its function is the same as previously.
Example cases: HS2 Alliance Limited v Secretary of State for Transport.

Question 18

How are criticisms of the Supreme Court on the grounds that it is too powerful for an entirely unelected body are misguided?

Answer 18

• UK supreme court has no more power than the Appellate Committee of the HoL that it replaced in 2009.
• Rare for those in senior judicial positions worldwide to be elected to office ; judicial independence requires senior judges are free ti interpret law and dispense justice freely, without fear of being removed from office through the ballot box.

Question 19

What factors have enhanced its authority?

Answer 19

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

Question 20

Why would the withdrawal from the Treaty of Rome from Brexit impact the UK Supreme Court?

Answer 20

EU law would no longer take precedence over the UK law and the ECJ would mo longer have jurisdiction over the UK:

• A proportion of its current caseload related to EU law
• The removal of a court that is, in theory, superior to the Supreme Court in some aspects of law would enhance the Supreme Court’s status and authority.