The UK Judiciary Flashcards
How many Supreme Court Justices are there?
12
When did the UK Supreme Court open?
2009
Where did the Supreme Court Justices sit before the opening of the SC?
-justices sat as Law Lords in the Appellate Committee of the House of Lords
Which positions make up the senior judiciary?
-heads of division
-justices of the Supreme Court
-Lord Justices of Appeal
-High Court Justices
How were appointments previously made to the SC?
-appointments were made by the monarch who was advised from the PM and Lord Chancellor
-Lord Chancellor would make a ‘pick’ from a sounding of those already serving the senior judiciary
Why was the old system of appointing SC Justices criticised?
-lacked transparency
-undermined the separation of powers
What was created to improve the transparency of nominations?
-the Judicial Appointment Committee
Constititional Reform Act (2005)
-reduced the power of the Lord Chancellor would
-puts most senior judicial appointments in the hand of the independent judicial Appointment Committee (JAC)
-provided the creation of the SC
What qualifications must an individual hold to be appointed to the UK SC?
-must have held high judicial office for 2 years or been a ‘qualifying’ practitioner for 15 years
What does the nomination process look like for the SC?
-a vacancy arises
-5 member selection commission convenes to consider possible nominees
-commission submit their candidate to the Lord Chancellor (accept or reject candidate)
-Lord Chancellor accepts the nomination notifying the OM
-PM then recommends appointed to the monarch
-appointment confirmed when the monarch issues letter patent
What proportion of SC justices went to a private school?
9/12 compared to 7% of the UK
What proportion of the SC Justices went to oxbridge?
11/12 compared to 1% of the population
What was the avergae age of a justice in 2021?
65
When was the first woman appointed to the UKSC?
-2009
-Lucy Hale
-then went on to become the first female president of the SC in 2017
Why was the UK SC established?
-there were concerns over an incomplete separation of powers
-criticism of the system under which the Law Lords were appointed
-confusion in the general public over the status and function of the Law Lords
What are 3 key function of the SC?
-final court of appeals
-to hear appeals of civil cases in Scotland
-to hear appeals in cases where there is uncertainty to clarify the meaning of a law
What does A.V Dicey state that the ‘rule of law’ is?
-one of the twin pillars of the English Constitution
What does Dicey identify as the 3 strands of the ‘rule of law’?
-no one can be punished without trial
-No one is above the law and all are subject to the same justice
-the general principle of the Constitution is the result of decisions from justices
Example going against the statement “No one can be punished without trial”?
-terrorist suspects have been subject to a range of punishments without trial since 2001
-indefinitely detention and the freezing of assets
Example going against the statement “No one is above the law and all are subject to the same justice”?
-there are those who are effectively above the law
-the monarch, international ambassadors and MPs under parliamentary privilege
Example going against the statement “The general principles of the Constitution result from decisions of judges”?
-parliament remains sovereign
-legal precedents can be overturned by an act of parliament
Judicial independence
-the principle that those in the judiciary should be free from political control
Judicial Impartiality
Judges operate without personal bias in their administration of justice
What feature of the UK system support judicial independence?
-security of tenure
-guaranteed salaries
-contempt of court
-growing separation of powers
-an independent appointment system
-training and experience
Evidence that the UKSC justices have security of tenure?
-judges are appointed for an open ended term
-politician’s can’t threaten to remove them
-impeaching a justice requires a vote in both houses
Where do justices salaries come from?
-judge’s salaries are paid from the consolidate fund
-politicians can’t manipulate salaries
How is judicial impartiality guaranteed?
-anonymity (judges are expected to avoid being drawn into open defence of their rulings)
-political activity
-legal justifications judgements
-high level training
What threats are there to judicial impartiality
-the narrow pool for recruiting justices (most are privately educated and oxbridge graduates + don’t represent a wide range of experiences)
-JAC has done little to change that
-passing of the HRA (1998) means that there is greater conflict between judges and politicians
Argument that the UK judiciary has become more politicised?
-HRA (1998) drew judges into political fray by requiring them to rule on the ‘merit’ of an individual piece of statute law, rather than its application
-Factortame V Secretary of State for Transport (meant that courts could suspend acts of parliament that were thought to contradict EU law)
-creation of the SC brought justices into the public arena (more scrutiny)
-politicians have broken conventions by criticising rulings
Argument that the UK judiciary has not become more politicised?
-the JAC has enhanced transparency and addressed political interference
-SC has become more independent since the Constitutional Reform Act (2005)
-conflict between justices and politician’s shows that the courts are challenging the gov on civil liberties
-judges benefit from security of tenure and guaranteed salaries
Why can the UKSC not strike down laws?
-parliamentary sovereignty and an uncodified constition
Judicial Review
-judges review the actions of public officials/bodies to determine whether they have acted in a manner that is lawful
-by doing so they set judicial precedence
What is an ultra vires ruling?
-when a public body/ official has acted beyond the authority granted to them under the law
Summary of Reilly v Secretary of State for Work and Pensions
-judges were asked to rule on the lawfulness of the ‘welfare to work’ scheme
-Reilly argued that the DWP had infringed protection against slavery
-Article 4 of ECHR Court ruled the the DWP had not established slavery but acted ultra vires
How did the government get around the ruling of Reilly v Secretary of State for Work Pensions?
-passed the Jobseekers Act (2013) meant that no offence has been committed
-the court state that changing the law retrospectively was incompatible with Article 6 of the ECHR Court ruled
How did the government get around the ruling of Reilly v Secretary of State for Work and Pensions?
-passed the Jobseekers Act (2013) meant that no offence has been committed
-the court state that changing the law retrospectively was incompatible with Article 6 of the ECHR
What was the European Communities Act (1972)?
-UK incorporated the Treaty of Rome into UK law
-gave European Law precedence over UK law
-meant that the government could be held to account at the European court of justice
What happened in the Factortame case?
-series of connected cases where the ECJ established the precedent that UK courts could suspend any UK Statute law that violated EU law
When was the HRA passed in the UK?
-1998
-comes into effect in 2000
-incorporates ECHR into UK
Summary of Tigere v Secretary of State for Business (2015)?
-shows how judges have used ECHR to protect against discrimination
-Tigere arrived in England as a child and was given ‘discretionary leave to remain’
-meant she wasn’t eligible for a student loan because the could ‘indefinite leave to remain’
-UKSC accepted Tigere’s appeal as it went against her Article 2 rights of the ECHR to access an education
Limitations of the SC’s powers under the HRA (1998)
-HRA is not entrenched or superior to a regular statute
-HRA can be derogated (parts of it suspended during times of national emergency)
-the court can not strike down parliamentary stature under HRA
Argument that the UK judiciary HAS had an impact on the work of the executive and judiciary in recent years?
-CRA (2005) increased judicial independence (meant that judges have had a more public profile)
-allowing cases to be heard under ECHR has increase the court power
-precedent established under Factortame (allows judges to suspend actions of the executive that are against EU law)
-Maastricht Treaty (1992) brought conflict between judges and politician’s over a wider range of policy
Argument that the UK judiciary HAS NOT had an impact on the work of the executive and judiciary in recent years?
-relocation of the court in 2009 didn’t change the constitutional relationship with the judiciary
-parliament is under no legal obligation to fall in line with a court’s ruling
-senior judges can assess that a politician has acted ultra vires, however they can assess retrospective legislation to legitimise their actions
-Brexit meant that the UK would not be subject to EU law after its leaving period
Feature of the European Court of Human Rights
-established by the council of Europe
-hears cases brought under ECHR
-not an EU body
Features of the European Court of Justice
-SC of the EU
-Hears cases under EU law
-based in Luxembourg
How did Brexit affect the UKs obligations to EU law?
-Brexit involved withdrawing from the Treaty of Rome
-EU law would no longer take precedent over UK law
Impact leaving the EU had on the SC
-proportion of cases had related to EU law were removed
-SC no longer enforced with enforcing EU law over UK law
-removed a court superior to the UKSC, enhance its authority
Summary of R v Horncastle (2009)
-hearsay evidence could be used as a basis of conviction
Summary of Prest v Pretrodel LTD (2013)
-company assets should be seen as separate from individual assets
Summary of Nicklinson v Ministry for Justice
-Article 8 of the ECHR couldn’t be used to justify assisted suicide over the Suicide Act (1996)
Summary of Sutherland v Her Majesty’s Advocate (2020)
-Sutherland was convicted of communicating indecently with a 13 year old (actually a 48 year old decoy)
-Court unanimously rejected Sutherland’s appeal that using covertly obtained based evidence breached Article 8 of the ECHR couldn’t
Summary of Begum v Special Immigration Appeals (2020)
-court of Appeal rolled that Begum had the right under Articles 2 & 3 of ECHR to challenge the UK governments decision to strip her of her citizenship
-she would also be permitted to return to the UK to plead her case
Summary of the SC Prorogation ruling (2019)
-the court found that the use of the royal prerogative to prorogue parliament must respect the convention of parliamentary sovereignty
-declared Johnson’s prorogation of parliament unlawful
