The supreme court and the legislative & policy-making process - 4.1 Relations between institutions - UK Government Flashcards
Constitutional Reform Act 2005
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
Before the Constitutional Reform Act
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
Supreme court
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)
Supreme court & EU
Supreme court has a responsibility to interpret laws passed by the EU
Supreme court and devolution
Supreme Court makes rulings when devolved bodies may not have acted within their powers
Example of supreme court overruling a devolved body that has exceeded its powers
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.
Members of the Supreme Court
12 members, but odd number always hear cases. Number depends on importance.
Most senior member is appointed president
Example of 11 justices hearing a case
Decision of the Supreme Court on the Prorogation of Parliament
Members of Supreme Court & HoL
They don’t sit in the Lords until their term of office has come to an end
Pale, male and stale
Phrase used to describe the judges (only one woman)
Key principles of supreme court
Neutrality & independence
Judicial neutrality
The principle that judges should not be influenced by their personal political opinions and should remain outside of party politics
Supreme Court code of conduct
- Outlines ways for impartiality to be safeguarded (neutrality)
- Conflicts of interest
- Public activities
Conflicts of interest - code of conduct
Judges must refuse to sit on a case involving family member etc
Public activities - code of conduct
Judges must avoid political activity - they may give lectures etc but must maintain political neutrality
Radmacher v Granatino
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
Judicial independence
The principle that judges should not be influenced by other branches of government, particularly the exectuvie
In built guarantees of independence in supreme court
- Terms of employment
- Pay
- Appointment
Terms of employment (built-in guarantee of judicial independence)
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
Pay (built-in guarantee of judicial independence)
Judge’s salaries are paid automatically from independent budget free from manipulation by ministers
Appointment (built-in guarantee of judicial independence)
Judicial Appointments Commission and the Selection Commission for the Supreme Court are transparent in their procedure and free from political intervention
Lord Philips and budget
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
Declaration of incompatibility
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
Judicial review
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
Ultra Vires
A Latin term meaning “beyond the powers” - action that is taken without legal authority
Supreme Court power of judicial review
Supreme Court can examine public bodies to see if they have acted ultra vires.
Examples of rulings working in favour of the government
- Begum v Home Secretary (2021)
- HS2 rail link 2014
Examples of rulings working against the government
- Ali Rawi case 2011
- R (Miller) v Secretary of State for Exiting the European Union (2017)
