UK Government: The Judiciary Flashcards
Background Information
-2019, Supreme Court ruled that Johnson acted unlawfully in proroguing parliament.
-Hale, president, said “preventing the ability of parliament to carry out its constitutional functions without reasonable justification.”
Supreme Court
-12 justices & based in Middlesex Guildhall.
-acts as the final cost of appeal for all cases in England, Wales & NI & hears appeals for civil cases in Scotland.
-helps where there is legal uncertainty.
The composition of the judiciary & the appointments process
-refers collectively to all UM judges (lay magistrates, serving on tribunals & the 12 justices etc).
-before Supreme Court began work, in 2009, the highest court of appeal compromised of 12 Law Lords who sat in Appellate Committee of HOC, (members of HOC & judiciary).
-Supreme Court has power to hear appeals & review actions of public bodies to establish new rules or precedents.
The composition & importance of the senior judiciary
-compromises justices of the Supreme Court, heads of divisions, Lords justifies of appeal, high court Judges & deputy High court judges.
-senior judges use power of judicial review to clarify a legal position where statute law is unclear.
-forms body of legal precedent guiding lower courts & future lawmakers.
Appointments to the senior judiciary in the UK
-once made by the monarch on advice of the PM & Lord Chancellor.
-LC making picks on basis of ‘secret soundings’ with close associates & those serving in senior judiciary.
-claimed this undermined separation of powers & lacked transparency since the circle was narrow.
(Oxford, white, male, old).
Constitutional Reform act 2005
-reduced power of the Lord Chancellor placing most senior judicial appointments into the hands of a new, independent Judicial Appts Commission (JAC).
-hoped this would make more socially representative judiciary.
-created Supreme Court which would be the highest court of appeal.
Qualifications for appointment as justice to the UK Supreme Court
-must have either held high judicial office for at least 2 years.
-or been a ‘qualifying practitioner’ for 15 years.
A qualifying practitioner:
-has a senior courts qualification
-or is an advocate in Scotland or a splitter entitled to appear in the Scottish Court of Session & High Court of Justiciary.
-or is a member of the Bar of NI or a solicited in the Court of Judicature in NI.
Process of appointing justices to the Supreme Court
-a vacancy arises,
-a 5 member selection commission is convened to consider possible nominees & make selection based on merits.
-a commission submits report to Lord chancellor identifying a nominee.
-LC either rejects, asks for reconsideration or,
-accepts selection by ‘notifying PM.
-once notcied, PM must recommend candidate to queen.
-appointment confirmed once monarch has issued letters patent.
Does the Supreme Court look like the UK?
-accusations of election due to statutory qualifications & experience required.
-9/12 (75%) justices attended independent secondary school (7% of UK).
-11/12 (92%) attended Oxbridge (1% of UK).
-1/12 (9%) women (51% of UK).
-0/12 (0%) minority ethnic groups (14% of UK).
-65.1 is average age (40.5 in UK).
-12 justices.
3 reasons the UK Supreme Court was established
-concerns over the incomplete ‘separation of powers’.
-widespread criticism of the system under which Law Lords were appointed.
-confusion among genera public over status, role & work of the Law Lords.
3 key functions performed by Supreme Court
-to act as the final court of appeal for England, Wales & NI.
-to hear appeals for civil cases in Scotland.
-to hear appeals in cases of uncertainty & clarify the meaning of the law.
Key doctrines & principles underpinning Supreme Court: The rule of law
-A.V. Dicey identified rule of law as one of the twin pillars of the English constitution with the other being parliamentary sovereignty.
-rooted in the vernal principle that equal justice should be available to all.
Rule of law: No one can be punished w/o trial
-good in theory but not always maintained in prayicd.
E.g. terrorist suspects have been subject to a range of punishments without trial under measures passed since 2001, including indefinite detention, imposition of control orders & freezing of assets.
Rule of law: No one is above the law
-there are some who are not subject to the same justice & are ‘above’ the law.
E.g. the monarch, international ambassadors & MPs (under parliamentary privilege).
partygate!!!!!
Rule of law: General constitution principles result from judges decisions
-while the decisions of judges (case law/common law) play a part in defining the UK’s constitutional arrangements, parliament is sovereign & statute law remains supreme.
-crucially, any legal precedent can be overturned by the means of a simple Parliament act.
Judicial independence & Judicial impartiality
-rule of law demand that judges should be independant & dispense justice with degree of neutrality & impartiality.
Judicial independence: those in judiciary should be free from political control, allowing judges to apply justice properly without fear of consequence.
Judicial impartiality: where judges operate without personal bias in their administration of justice.
What features of the UK system support judicial independence?
- Security of tenure: no threat of suspension as to remove a judge by impeachment requires vote in legislature.
- Guaranteed salaries: automatically paid by Consolidated Fund so can’t be manipulated.
- Contempt of Court: under the sub judice rule, media, ministers & wider public are prevented from speaking out publicly during legal proceedings.
- Growing separation of powers: creating of SC enhanced this.
- Independent appointments system: JAC brings more transparency to process of appointments & addresses accusations of political bias.
- Training & experience: msot senior judges served long apprenticeships in law & have high status. Wouldn’t compromise integrity to defer to opinions of politicians.
How is judicial impartiality guaranteed?
-impossible to guarantee it.
-promise of universal application of law requires bias prohibits colouring judicial decisions.
- Anonymity: operate away from Punic eye & don’t speak publicly & aren’t open to criticism.
- Political activity: judges aren’t supposed to campaign on behalf of parties/ pressure groups. Must ensure their views don’t become public.
- Legal justifications of judgements: explain how devious are rooted in law reduces bias. Their devious are published fully on the Court’s website.
- High-level training: trained by Law Society. Elevation to the bench suggests ability to avoid bias.
Threats to judicial impartiality
-narrow recruiting pool (life experiences are different to those brought in front of them). JAC has done little to address this issue.
-drawn into more openly political conflicts recently, (passage of measures in HRA 1998), resulted in politicisation (drawn into party politics).
-could show judges willing to take on political establishment in defence of civil liberties.
Has the UK judiciary become politicised recently? Yes
-HRA 1998 drew senior judges into political fray by requiring them to file on the ‘merit’ of individual piece of stature law rather than its ‘application’.
-R v Secretary of State for Transport (1990) established precedent that UK courts can suspend acts of parliament when contradicts EU law.
-creating of SC & relocation to Middlesex Guildhall = public arena & scrutiny by media.
-politicians have broken with convention by publicly criticising rulings handed down by judges.
Has the UK judiciary becomes politicised recently? No
-creation of JAC increased transparency & addressed concerns over poltical interference.
-SC has becomes more independent in the wake of the CRA (downgrading of role of LC).
-security of tenure & guaranteed salaries helps insulate them from political pressure.
