UK Government - The Judiciary Flashcards
When and how was the Supreme Court established?
- Constitutional Reform Act 2005 - reduced the power of the Lord Chancellor, placing most senior judicial appointments into the hands of a new, independent Judicial Appointments Commission - it was hoped that this change would enhance separation of powers and result in a senior judiciary that was more socially representative of the broader population.
- October 2009
- Located in Parliament Square - it is physically close to parliament whilst also being separate, signifying the new separation of branches.
- 12 judges, known as the Supreme Court Justices, reside in the Supreme Court
- Before the SC, a system of 12 Law Lords existed who sat in the Appellate Committee of the House of Lords, and they were technically members of both the judiciary and upper chamber of the legislature.
https: //docs.google.com/document/d/1O0U6x20dZx8KpFlJoHDeQaoHaQsCIHjlGZ21GB-_lpo/edit
Why was it established and what is its role and purpose?
- To provide more transparency and separation of the branches within the UK government system. It also helped uphold the independence of the judiciary and an independent body for appointment.
- They aim to provide greater transparency and legitimacy to the process by which most senior judges are appointed. They set precedents for key constitutional questions and decide matters of general importance and relevance to the public. The role of the Supreme Court is not to decide cases, but provide advice on how to decide cases and how to decide cases on the same question, laying down case law where there is legal uncertainty.
What is the relationship between the UK Supreme Court, the European Court of Human Rights, and the Court of Justice of the European Union?
The ECHR is the overruling precedent for human rights, and the European law used to be supreme and take precedence over the UK Supreme Court ruling; however, sovereignty over rulings has returned to other UK SC with Brexit proceedings.
How did appointments used to be made to the senior judiciary and why was this a problem?
Appointments to all senior positions were once made by the monarch, on the advice of the PM and the Lord Chancellor with the Lord Chancellor making ‘pick’s on the basis of ‘secret soundings’ with close associates and those already serving in the senior judiciary. This system however lacked transparency and undermined the separation of powers by causing a judiciary drawn on a narrow social circle of white, male, Oxbridge educated and above middle aged judges.
How are appointments now made to the UK Supreme Court?
Candidates must now either hold high judicial office for at least 2 years or be a qualifying practitioner for a period of 15 years; this is someone who has a senior court qualification, is an advocate in Scotland or a solicitor entitled to appear in the Scottish Court of Session and the High Court of Justiciary, or is a member of the Bar of Northern Ireland or a solicitor of Judicature of Northern Ireland. The new system involves a vacancy opening, followed by a selection based on merit by a select commission, who then submit a report to the Lord Chancellor identifying a nominee. The Lord Chancellor then will either reject the selection, leading to a reconsideration of selection from the commission, or they are accepted by ‘mobbying the Prime Minister’, and once notified the PM must recommend the candidates to the queen, who then confirms the appointment via letter.
In what ways can the UK Supreme Court be said to be elitist and unrepresentative?
Membership of the court requires statutory qualifications that are not available to all groups, and the need for prior legal experience causes accusations of elitism and a lack of representation. Since the establishment of the SC, most justices have been educated in independent or grammar schools and educated in Oxbridge colleges, suggesting elitist and upper class origin and a lack of representation of minority groups who cannot access these start points.
Do you think the make-up of the UK Supreme Court is an issue?
Yes and no - it is an issue, as a court making decisions for the public should fully represent the public. However, with such decisions being made by the SC, it is more important to focus on qualifications than the independent quotas filled by a person, and so as long as witnesses and opinion fed to the Court is diverse in who has been consulted, those with enough expertise should be selected and trusted to make decisions for the public and not just their represented groups. However, more representative political institutions are always beneficial for democracy.
2 current SC cases
1) ‘Candey Ltd v Crumpler and another (as Joint Liquidators of Peak Hotels and Resorts Ltd)’ - what action must a solicitor take when entering into an additional security arrangement with a client to avoid waiving its rights under a pre-existing equitable lien (or creating inference of a waiver)
2) ‘The Soldiers, Sailors, Airmen and Families Association - Forces Help and another v Allgemeines Krankenhaus Viersen GmbH’ - concerns the interpretation of the Civil Liability Act 1978; discussion of whether the Act has extra-territorial effect, and if it does then a contribution claim can be brought under the 1978 Act even though the contribution claim concerns foreign not English law
2 high profile SC cases
1) Tony Nicklinson and the right to die (2014) - Tony suffered from ‘locked-in syndrome’ and wished to travel to Switzerland to undergo a euthanasia procedure; his family argued that the 1961 Suicide Act infringed on the right to decide when to die. The court ruled that it was a moral judgement to be addressed by parliament, but voted 7-2 against the family and the others involved.
2) The backing of the bakery that refused to make a gay marriage cake - the court decided that free speech should be upheld and that the bakery was not obliged to make the cake, as it was not considered under discrimination under protected characteristics, due to their religious beliefs. This was a highly controversial case.
Separation of powers and key functions
Separation of Powers is the doctrine that requires that the three elements of government power - legislative, executive and judicial - be held by separate branches of government in order to prevent tyranny.
- The legislature legislates (i.e makes the laws) = Parliament
- The executive branch has the role of executing policy (i.e putting laws into effect) = Government
- The judiciary is charged with the task of enforcing and interpreting the laws. = the legal system
Key functions -
- Under the Constitutional Reform Act 2005 the new Supreme Court took on most of the judicial roles previously performed by the Law Lords. These included;
1) To act as the final court of appeal in England, Wales and Northern Ireland.
2) To hear appeals from civil cases in Scotland.
3) To hear appeals in cases where there is uncertainty and thereby clarify the meaning of the law.
What are the main differences between civil & criminal courts? What are tribunals?
- Civil courts resolve disputes between private citizens or between citizens and the ste, e.g breach of contract, property rights. Claimant v Defendant, court can order the defendant to pay compensation or some other reedy. → Tribunals
- Criminal courts hear and decide cases where people are accused of breaking the criminal law. Prosecution v Defendant, Court can inflict punishments e.g fines or imprisonment. -> Court System
- Tribunals function similarly to courts but have different processes, again more civil disputes. If you disagree with the tribunal decision you can appeal to the Upper Tribunal.
- The High court, Supreme Court and Court of Appeal involves the government.
The Supreme Court and the European Courts
- The UK is still the highest court in the land and the final court of appeal of England, Wales and Northern Ireland, as well as some decisions on civil cases in Scotland, which then filters down throughout the lower courts.
- They are the only court that can establish new precedents for Common law
European Court of Justice
- Highest court in the European Union in matters of European Union law
- Interprets EU law and ensures that it is equally applied across all Member State
- Sets binding precedents that must be followed by all national courts.
- Binding Precedent in Supreme Court
European Court of Human Rights
- Established in 1959 to uphold the European Convention on Human Rights
- 1966 - UK allowed individual petition and this was the right to take a legal case against the UK to the ECHR
- The HRA requires the UK judges to take into account the ECHR’s decisions
- Taken into account by the Supreme Court
What are the main functions performed by the lower courts in England & Wales?
- Preside over court hearings and dispense justice - uphold the rule of law, ensure everyone has access to a fair trial (both sides can make their case), ensure all citizens are equal under the law - including the government
- Apply the law - apply laws to particular circumstances; statutes can be purposefully vague
- Decide on sentencing
- Historically, judges had considerable freedom to decide what sentences to hand out.
- However, in recent decades parliament has introduced a number or minimum and mandatory sentences for particular crimes, reducing judges’ discretion.
How do senior judges in the Court of Appeal and Supreme Court ‘make law’ through their interpretation of statutes? What does ‘stare decisis’ mean?
- Interpret vague statutes, and apply the law of vaguely written status
- Words can be ambiguous, with different meanings in different contexts - our understanding of worlds can also gradually evolve over time.
- Literal rule is applied by judges - the words of stature are given their natural and ordinary meaning.
- Golden rule - if a literal interpretation would lead to an absurd outcomes then judges substitute; keywords or phrases ensure the Act makes sense and there is a reasonable outcome
- Mischief rule - judges consider the ‘mischief’ that the Act intended to address and then interpret the act so that it achieves the purpose intended by parliament.
- Judges may not always agree on interpretation
- Misuse of drugs act disagreement - R v Maginnis -> it was unclear how it would apply to cannabis found in a defendant’s car, who stated it had been left by a friend, and they were collecting it later, and so was not supplying drugs; a majority of judges disagreed, but Lord Geoff argued he was simply an associate, not a supplier
- Make the law - common law became a way to interpret statutes and used precedents that filled gaps in statute laws and gave ancient laws justice
- Stare decisis - Meaning to stand by decided matters; only SC can establish common law precedents
Statutory interpretation - judges settle disputes on interpretation, and shape the impact of laws, and cases with similar facts should be dealt with the same way - Declaring Common Law - sometimes there may not be a relevant statute - may rely upon common law
Judicial review and public inquiries
- The power to review the actions and decisions of public bodies to ensure that they are sanctioned by law and judges can review the actions of government ministers, police officers and local
- Reviews ensure they are following the law
- As judges are independent of the government and politically neutral they are seen as suitable chairs to lead inquiries into areas of public concern.
- E.g. Gibson inquiry (2010) and Leveson Inquiry (2011)
The Rule of Law
Explanation / definition
- The constitutional theories A.V. Dicey identified the Rule of Law as one of the twin pillars of the English Constitution, with the other being parliamentary sovereignty. Rooted in the general principle that ‘equal justice’ should be available to all, with three strands of the doctrine that demonstrate what it may look like.
Three key elements of the Rule of Law
1) No one can be punished without trial; while the principle makes sense in theory, it is not always maintained in practice - terrorist suspects for example have been subject to a range of punishments without trial under measures passed since 2001, including indefinite detention, imposition of control orders and freezing of assets
2) No one is above the law and all are subject to the same justice; there are however those who are always above the law in the UK, such as the monarch, international ambassadors and MPs under parliamentary privilege
3) The general principles of the constitution result from the decisions of judges; while the decisions of judges define constitutional arrangements, parliament remains sovereign and statute law is supreme to common law, with any legal precedent being able to be overturned by a simple Parliament Act
Judicial Independence
Explanation / definition
- The rule of law demands all judges should operate with a high level of independence and dispense justice with a degree of neutrality or impartiality; the absence of judicial independence threatens judicial impartiality because if judges are subject to external control, their impartiality is compromised, but independence does not guarantee impartiality because judges may still allow their personal views to influence their administration of justice.
Six key elements of the judicial independence
1) Security of tenure - aside from retirement, judges are appointed for open-ended terms and so politicians find it difficult to bring influence through threats of sacking, and impeaching a judge requires parliamentary support
2) Guaranteed salaries - paid automatically from the Consolidated Fund, and so cannot be manipulated and controlled through finances
3) Contempt of court - under the sub judice rule, the media, ministers and wider public are prevented from speaking out publicly during legal proceedings
4) Growing separation of powers - downgrading of the post Lord Chancellor and creation of the UK Supreme Court enhanced the separation of powers between the senior judiciary and government
5) An independent appointments system - the creation of the JAC, under the CRA 2005, brought greater transparency to the appointment process and served to address accusations of political bias
6) Training and experience - most senior judges have served a long apprenticeship in law, and they have high status and take considerable pride in their legal standing, and so are unlikely to compromise their professional integrity simply to defer politicians or public opinion
Judicial Impartiality
Explanation / definition
- It is impossible to guarantee this, and judges inevitably bring some bias to their work; however, the promise of universal application of the law under the doctrine of the Rule of Law requires that such bias is prohibited from colouring judicial decisions. There are four ways impartiality is achieved:
Four key ways in which judicial impartiality is guaranteed
1) Anonymity - judges generally operate away from the public eye and rarely speak out publicly on issues of law or public policy - senior judges are expected to avoid being drawn into open defence of their rulings, or open criticism of those in government
2) Political activity - judges are not supposed to campaign on behalf of a political party or a pressure group; although judges retain the right to vote, their political views or outlook should not become a matter of public record
3) Legal justification of judgement - the fact that senior judges are expected to explain how their decisions are rooted in law makes it less likely that those decisions will be coloured by personal bias
4) High-level training - judges are part of a profession that is highly trained and regulated by the Law Society, and elevation to the bench would suggest an ability to put personal bias to one side; additional guidance and training can be offered or required where concerns exist
Way in which judicial impartiality is threatened
- Criticisms of the judiciary often point two key threats - the narrow recruiting pool, which makes it harder for judges to be impartial when their own life experiences are so different from most of those who are brought before them; most of those appointed to the SC have been privately schooled, Oxbridge educated, white, middle-class, above middle-aged men; the creation of the JAC has done little to address this problem
- Secondly, senior judges have been drawn into more openly political conflicts in recent years, the suggestion being that the passage of measures such as the HRA 1988 has resulted in politicisation of the judiciary - some see this growing public profile and increased conflict between senior judges and politicians as posing a threat to judicial impartiality
- However, it could equally be evidence of growing judicial independence and impartiality - because they are increasingly willing to take on the political establishment in defence of civil liberties
Judicial Review and Ultra Vires Definition
Judicial review -
- The process by which judges review the actions of public officials or public bodies in order to determine whether or not they have acted in a manner that is lawful
Ultra vires -
- From the Latin meaning ‘beyond the authority’ or ‘beyond one’s powers’ - the process of judicial review can be used to determine whether or not a minister or other government officer has acted ultra vires, which is beyond the authority granted to them in law
The importance of judicial review
- Although statute law is supreme and the lack of a codified constitution means that the judiciary cannot ‘strike down’ laws, they still have considerable power through judicial review - Supreme Court and Courts of Appeals
- This is because unlike the lower courts, they can establish legal precedent or common law through their judgements and so they clarify the meaning of the law as opposed to simply applying the letter of the law
- Synopsis - the US constitution is regarded as fundamental law and so is seen as superior to regular legislation, and so the judicial review power can be used to strike down regular Acts of Congress where they violate constitutional provisions
