The supreme court and the legislative & policy-making process - 4.1 Relations between institutions - UK Government

Question 1

Constitutional Reform Act 2005

Answer 1

Act of parliament that provided for a new supreme court to replace the law lords in the house of lords as the highest UK court. Enacted in 2009. Created greater separation of powers ending fusion of powers.
Lord Speaker replaced Lord Chancellor as chairing HoL
Independent Judicial Appointments Commission chooses judges rather than Lord Chancellor

Question 2

Before the Constitutional Reform Act

Answer 2

Law Lords (most senior judges) had been in House of Lords and therefore not independent of parliament.
Lord Chancellor was cabinet minister, chaired the HoL and was head of judiciary (total fusion of powers) - now just a cabinet minister

Question 3

Supreme court

Answer 3

UK-wide court. Acts as a final court of appeal for rulings made by lower courts
(not the final court of appeal for criminal cases in Scotland)

Question 4

Supreme court & EU

Answer 4

Supreme court has a responsibility to interpret laws passed by the EU

Question 5

Supreme court and devolution

Answer 5

Supreme Court makes rulings when devolved bodies may not have acted within their powers

Question 6

Example of supreme court overruling a devolved body that has exceeded its powers

Answer 6

2016 - Scotland wanted to introduce ‘named person’ service. SC ruled it conflicted with Article 8 of Human Rights - the right to a private family life.

Question 7

Members of the Supreme Court

Answer 7

12 members, but odd number always hear cases. Number depends on importance.
Most senior member is appointed president

Question 8

Example of 11 justices hearing a case

Answer 8

Decision of the Supreme Court on the Prorogation of Parliament

Question 9

Members of Supreme Court & HoL

Answer 9

They don’t sit in the Lords until their term of office has come to an end

Question 10

Pale, male and stale

Answer 10

Phrase used to describe the judges (only one woman)

Question 11

Key principles of supreme court

Answer 11

Neutrality & independence

Question 12

Judicial neutrality

Answer 12

The principle that judges should not be influenced by their personal political opinions and should remain outside of party politics

Question 13

Supreme Court code of conduct

Answer 13

• Outlines ways for impartiality to be safeguarded (neutrality)
• Conflicts of interest
• Public activities

Question 14

Conflicts of interest - code of conduct

Answer 14

Judges must refuse to sit on a case involving family member etc

Question 15

Public activities - code of conduct

Answer 15

Judges must avoid political activity - they may give lectures etc but must maintain political neutrality

Question 16

Radmacher v Granatino

Answer 16

Case involving pre-nuptial agreement between married couple. Lady Hale was the only 1 of 9 justices to disagree. Likely because those being affected will be women
- Shows possible lack of neutrality

Question 17

Judicial independence

Answer 17

The principle that judges should not be influenced by other branches of government, particularly the exectuvie

Question 18

In built guarantees of independence in supreme court

Answer 18

• Terms of employment
• Pay
• Appointment

Question 19

Terms of employment (built-in guarantee of judicial independence)

Answer 19

Judges cannot be removed from office unless they break the law. Must retire at 70 (if appointed after 1995) - this is security of tenure
Judges are immune from legal action arising from comments made on cases in court

Question 20

Pay (built-in guarantee of judicial independence)

Answer 20

Judge’s salaries are paid automatically from independent budget free from manipulation by ministers

Question 21

Appointment (built-in guarantee of judicial independence)

Answer 21

Judicial Appointments Commission and the Selection Commission for the Supreme Court are transparent in their procedure and free from political intervention

Question 22

Lord Philips and budget

Answer 22

SC first president Lord Philips raised concerns about funding following cuts imposed on the court system due to coalition strategy. Philips argued independence was at risk unless court could be granted pre-set funding. Kenneth Clarke (justice secretary)) dismissed the argument and said Supreme Court couldn’t set their own budget

Question 23

Declaration of incompatibility

Answer 23

Supreme court interprets HRA 1998 and if it believes an existing piece of UK legislation is in conflict with the ECHR it can issue a ‘declaration of incompatibility’ . It is expected parliament will bring the law into line with ECHR but due to parliamentary sovereignty they can’t strike it down limiting supreme court power

Question 24

Judicial review

Answer 24

The power of the judiciary to review, and sometimes reverse, the actions by other branches of government that breach the law, or that are incompatible with the HRA

Question 25

Ultra Vires

Answer 25

A Latin term meaning “beyond the powers” - action that is taken without legal authority

Question 26

Supreme Court power of judicial review

Answer 26

Supreme Court can examine public bodies to see if they have acted ultra vires.

Question 27

Examples of rulings working in favour of the government

Answer 27

• Begum v Home Secretary (2021)

- HS2 rail link 2014

Question 28

Examples of rulings working against the government

Answer 28

• Ali Rawi case 2011

- R (Miller) v Secretary of State for Exiting the European Union (2017)