UK supreme court Flashcards
(14 cards)
Is the court independent and neutral
Yes it’s Independence: fusion of the powers
AO1 the CRA 2005 has created strict separation of the powers as it established ind of the court and that judges must be ind from political influence.
AO2 By physicals moving judiciary from HOL gives them greater ind over constitutional issues + lord chancellor role removed from both branches and now an independent appointments process to protect ind of judiciary.
AO3 we can conclude that the principle of judicial ind has been strengthened by the CRA 2005 therefore sufficient in upholding ROL in uk democracy.
No it’s not Independent: Fusion of the powers
AO1 Main Criticism of judicial independence In the UK was The lack of strict SOP prior to the creation of the SC in 2009.
AO2 The role of the LC held all three positions in gov giving him too much power also as he had pos in cabinet could make him politically biased and in favour of gov proposals.Also justices were appointed by PM making the more political appointments and open to influence.
AO3 We can conclude that prior to 2009 that the principle of judicial ind was not sufficient in the uk as there was fusion of the powers between branches.
Yes it’s independent: restraint v activism
judges should exercise judicial restraint whether they go against the actions of the elected branch to ensure they do not become too involved in the political process. today claimants win fewer than 20% of human rights cases whereas in 2019 it was 60% at the same time the number of court cases won by public bodies has increased in 2020 fewer than 60% of cases went in favour of the public body whereas now it is 75%. In addition ministers exercise restraint as sub judice means that parliament is prevented from debating matters currently in front of the card to avoid accusations of interference.
AO2 The Supreme Court judges practice judicial restraint (seen in R V secretary of state for the home department where Lord Hodge explained in his judgement Parliament had granted the Home Secretary the power to set the application fee and therefore was lawful) this shows The Supreme Court judges are increasingly refusing to hear cases that upholding their own independence as it’s not their role as an unelected body and therefore judges should not stand in the way of the executive is right to make policy through acts of Parliament.
AO3 We can conclude that judicial independence is preserved by Supreme Court judges and ministers as both branches are less influenced and less bias by choosing to interact less with each other.
No it’s not independent: restraint V activism
AO1 The human rights act involves an important role by the court ruling on government decisions as it decides if its actions are compatible or incompatible with the ECHR which arguably makes them more active.
AO2 Ministers criticise the increasing judicial activism seen in both the case of miller exiting the eu as this decision by the Supreme Court slow down the process of triggering article 50 and Miller v PM supreme sowed the supreme Court willingness to adjudicate issues that fell within the prime minister‘s royal prerogative powers as they found it ultra virus. Therefore showing the court is increasingly taking on more constitutional cases .
AO3 We can conclude that judicial independence is increasingly under threat From the executive branch especially ministers and court is becoming more political due to judicial activism.
Yes it’s Neutral: Social representation
AO1 The SC is becoming more diverse allowing a range of ideas to be expressed when discussing cases Lady who joined the bench in 2004 she was the only female and state educated judge by the time she stepped down she was one of 3 female justices.
AO2 therefore showing that the court is neutral due to his composition this allows for big constitutional cases like Millers to have a more neutral outcome as there is less bias.In addition all cases contain an explanation of how they came to their decision which must be grounded in Law and evidence to avoid criticism of bias.
We can conclude the change in diversity of the court creates the impression that the court is neutral.
No it’s not neutral: Social representation
AO1 SC lacks diversity leading to accusations of bias which negatively effect neutrality of the court. example of justices went to Oxbridge I’ll wait and most 11 are male this implies a bias of past experiences.
AO2 the left criticise the lack of social representation in the judiciary and argue that it has led to decisions being made against minority groups also accused of having liberal bias due to their education and that they favour individual rights over public interest this is seen in the belmarsh and Treasury v Jabal Ahmed and others case 2010 were it was held in favour of D rather than keeping public safe of suspected terrorists
AO3 We can conclude that the Supreme Court is criticise from both the left and right of politics as not upholding judicial neutrality.
Does the Supreme Court have too much power?
this question can be phrased about the courts power versus the executive the legislature or both
yes it has too much power executive: Judicial review
AO1 The courts power of review can quash actions of government ministers if they’re ruled To be in ultravirus
AO2 gives the public the ability to challenge the lawfulness of the actions of the government this means decisions by the courts can alter the way the government behaves for example the unison 2017 case led to the government stopping fees and orders and reimbursing those they had been used against in addition the case of miller V PM The ruling of the SC found that Boris Johnson’s prorogation parliament had been unlawful.
AO3 We can conclude that the Supreme Court has too much power as it’s able to quash actions of ministers and government departments like ministry Of Justice by using its powers of judicial review
No the SC does not have too much power/it has Sufficient power: Judicial review
AO1 court rulings must always be based in law and they make decisions about whether public bodies and the executive has acted within the powers granted to it by acts of statute which is important as it upholds Parliamentary sovereignty However the power is a limited as they cannot strike down acts of statute.
AO2 The court does not have the power to strike down an act of statute They can only declare it incompatible with the ECHR furthermore the decisions made by the court is not legally binding on the executive branch as they are they are directly elected for example the ECHR ruled in Hirst V UK 2004 prisoners should be given the right to vote and withholding that right is a breach of the ECHR ( convention) however the UK executive and legislature has not implemented this ruling. In addition in Jabar Ahmed V treasury 2010 the order of freezing assets of suspected terrorists were ultravirus the government responded by passing the Terrorist asset freezing act 2010 giving the treasury the powers previously ruled unlawfully Showing the government can’t change the law but I can challenge it.
AO3 therefore we can conclude that the Supreme Court does not have power/sufficient power over the executive as declarations of incompatibility are not legally binding
Yes the court has too much power: HRA 1998
AO1 SCOTUK Can declare acts as incompatible with the human rights act. For example the Belmarsh case judgement of incompatibility was criticised highly by the government but they still repeal the controversial part of the law replacing indefinite detention with the control orders which was passed as Parliamentary legislation this meant that the government had satisfied the supreme courts ruling.
AO2 UK Supreme Court can declare act is incompatible with the HRA however they cannot force parliament to change the law but the declaration encourages Parliament to change or repeal the law because the government is breaking international agreements which is the ECHR.
AO3 we can conclude that the Supreme Court has too much powerful over the executive As such declarations urges Executive to act in line with its international agreements.

no the court does not have much power/sufficient power: HRA 1998
AO1 The SC cannot enforce its decisions It can only highlight that the law is incompatible with the human rights act and recommend a change like in the Belmarsh case and Steinfield and Kaiden case where after a declaration of incompatibility the government changed the law on civil partnership to include opposite sex couples
AO2  Parliamentary sovereignty still lies with the directly elected executive therefore supreme courts power is limited as they can only enforce laws and not create meaning of laws are unlawful and incompatible with HRA they can advise and challenge gov to take an alternative step eg amend or create new statute.
AO3 We can conclude the sc does not have power as they are not able to strike down acts of parliament and therefore executive dominates as they uphold parliamentary sov therefore they don’t have to repeal laws to fit in line with HRA even though they should.
Yes has too much power: unelected
AO1 The SC lacks democratic legitimacy as judges are unelected unaccountable and are socially unrepresentative yet has
become involved In political decisions for example there are currently 11 male justices most are white males that have attended Oxbridge for education.
AO2 Even though the SC lacks democratic
legitmacy It has been willing to challenge the executive and limit its power eg Miller v sec state for exiting European union as it slowed down the process of triggering article 50.
AO3 SC has become to involved in political issues rather than legal matters and therefore has much influence for an unelected body over the elective executive in a democracy.
No SC not powerful/ Sufficient power:unelected
AO1 SC is ruling on legal and constitutional issues not political ones eg The Supreme Court judges practice judicial restraint (seen in R V secretary of state for the home department where Lord Hodge explained in his judgement Parliament had granted the Home Secretary the power to set the application fee and therefore was lawful)
AO2 this shows The Supreme Court judges are increasingly refusing to hear cases therefore confines its role to legal matters as it’s not their role as an unelected body to interfere with the elected executive as their duty is to make policy through acts of Parliament.
AO3 we can Conclude that Supreme Court does not have influence of the executive as it’s fulfilling its role of a constitutional court
