UK Supreme Court

Question 1

secret soundings

Answer 1

The informal and secretive way in which most senior UK judges were once appointed -
the lord chancellor consulted in secret with close associates and those already serving in the senior judiciary.
This system lacked transparency, undermined the separation of powers, and resulted in a senior judiciary drawn almost exclusively from a very narrow social circle

Question 2

The founding justices of the new UKSC were the working Law Lords on 1st October 2009; although remaining members of the HoL, they were barred from sitting and voting in the upper chamber for as long as they remained justices on the UKSC
Under the CRA 2005 those appointed to the court after 1st October 2009 are not automatically awarded peerages

Question 3

To be considered for appointment, candidates must have either held high judicial office for at least 2 years, or been a qualifying practitioner for 15 years

Question 4

Judicial independence is the principle that those in the judiciary should be free from political control. Such independence allows judges to ‘do the right thing’ and apply justice properly without fear of the consequences

Question 5

Judicial Neutrality

Answer 5

Judicial neutrality is where judges operate impartially in their administration of justice. Judicial neutrality is an essential requirement of the rule of law

Question 6

How is Judicial Independence Maintained

Answer 6

Security of Tenure–>Judges are appointed for an open-ended term, limited only by the requirement that they must retire by the age of 75. Thus politicians cannot seek to influence judicial decisions by threatening to sack or suspend them. Members of the senior judiciary can only be removed as a result of impeachment pro

Guaranteed Salaries
politicians are unable to manipulate judges salaries as a way of controlling them

Offence of Contempt of Court
Under sub judice rules, the media, ministers and other individuals are prevented from speaking out publicly during legal proceedings. This requirement is designed to ensure that justice is administered fairly, without pressure from politicians or the public in general
Growing Separation of Powers

Independent Appointments System
The CRA (2005) provided for the creation of an independent Judicial Appointments Commission (JAC) - this brought greater transparency to the process of judicial appointments and served to address concerns that the system had been open to political bias

Training and Experience of Senior
Judges
Most senior judges have served an ‘apprenticeship’ as barristers, and come to the bench having achieved a certain status within their profession. Such individuals take considerable pride in their legal standing and are therefore unlikely to defer to politicians or public opinion as this would compromise their judicial integrity

Question 7

How is Judicial Neutrality Maintained

Answer 7

Relative Anonymity of Senior Judges
Judges have traditionally worked out of the public eye. Until recently, judges rarely spoke out publicly on issues of law or public policy, and senior judges are expected to avoid participating in open defence of their rulings, or criticism of those in government

Restriction on 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, the political views should not become a matter of public record

Legal Justifications of Judgements
Senior judges are generally expected to offer an explanation of how their decisions are based in law - this requirement makes it less likely that senior judges will be guided by personal bias. In the case of the UKSC, decisions are published in full on the court’s official website, along with press summaries of significant cases

High-level Training
Judges are part of a highly trained profession, regulated by the Law Society. Senior judges have commonly served for many years as barristers before taking to the bench, and their elevation to the higher ranks of the judiciary would reflect that they are able to put personal biases to the side when administering justice. Although the security of tenure makes it difficult to remove those whose neutrality is open to question, additional guidance and training can be required in such cases, and individual judges might also be removed from more serious cases whilst their performance is monitored

Question 8

threats to judicial neutrality

Answer 8

most of those appointed being privately-schooled, Oxbridge educated, white, middle-class men who are beyond middle age

how can judges be truly neutral when their own life experiences are so different from most of those who are brought before them

creation of the JAC appears to have done little to address this problem, and the composition of the UKSC is similarly unrepresentative

senior judges have recently been drawn into the political sphere, with the suggestion that the passage of measures such as the HRA (1998) has resulted in the politicisation of the judiciary

HOWEVER: could be seen as evidence of growing independence and neutrality - as senior judges appear increasingly willing to check the political establishment in defence of civil liberties

Question 9

UKSC has become more politicised

Answer 9

HRA 1998 has drawn senior judges into the political sphere by requiring them to rule on the merit of an individual piece of statute law as opposed to its application

Factortame Case (1990) established the precedent that UK courts can suspend Acts of Parliament where they are thought to contradict EU law

Question 10

uksc has not become politisiced

Answer 10

The appointments process for senior judges has been made more transparent and less susceptible to accusations of political interference through the creation of the JAC and the separate Supreme Court appointment process

The UK senior judiciary has become more independent after the Constitutional Reform Act 2005, such as through downgrading the role of lord chancellor

Increased conflict between judges and politicians is a positive thing because it shows that the courts are prepared to challenge the government when it appears to be encroaching upon our civil liberties

The fact that senior judges still benefit from security of tenure and guaranteed salaries helps to insulate them from political pressure

Question 11

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 lawfully

Question 12

The UK Supreme Court’s power is therefore limited to 4 main areas:
Revisiting and reviewing earlier legal precedent established under common law and case law
Making ultra vires rulings where the court judges that public bodies have acted beyond their statutory authority
Addressing disputes arising under EU law
Issuing ‘declarations of incompatibility’ under the HRA 1998

Question 13

Is the Supreme Court Too Powerful?

Answer 13

Supreme Court’s ability to establish precedent through common law could be seen as a quasi-legislative power
The impact of the Supreme Court’s interpretations can appear to create legislative change, even though parliament has made no change to statute law

Criticism of the Supreme Court due to it possessing too much power for an unelected body is misguided; the UKSC has no more power than the Appellate Committee of the House of Lords that it replaced in 2009

Judicial independence demands a degree of unaccountability - it is an essential feature of democracy that we must place our trust in those who are not directly accountable to the general public

Question 14

Has the UK Judiciary Had a Greater Impact on the Work of the Executive and Parliament

Answer 14

YES

In diminishing the role of lord chancellor and removing the UK’s most senior judges from the HoL, the Constitutional Reform Act 2005 inevitably enhanced judicial independence, making it more likely that judges would feel able to hold the executive and parliament to account
By allowing cases under the European Court of Human Rights (ECHR) to be heard in UK courts, the Human Rights Act 1998 allowed the UK’s most senior judges to directly question Acts of Parliament, as well as the actions of those working in the executive
The precedent established under the Factortame case 1990 allows senior judges to suspend the actions of both parliament and the executive, where either branch appears to have breached EU law
The extension of EU law as a consequence of the Maastricht Treaty 1992 brought senior UK judges into conflict with both the executive and parliament across a far wider range of policy areas than had previously been the case
This growth in judicial action has had a further, indirect impact; those in the executive and parliament now aim to avoid potential conflict in the courts by ensuring that all legislation complies with the HRA and EU law

NOOOO

The physical relocation of the UK’s top court to Middlesex Guildhall in 2009, although highly symbolic, did little to change the legal-constitutional relationship between the judiciary, the executive and the legislative
Although the HRA 1998 allows judges to issue a ‘declaration of incompatibility’ where an Act of Parliament appears to have violated the ECHR, parliament is under no legal obligation to obey the court’s rulings
While senior judges have the ability to rule that ministers in the executive have acted ultra vires, ministers can use the executive’s control of parliament to pass retrospective legislation which legitimises their earlier actions
Although the scope and scale of EU law has grown significantly since Maastricht, many areas of public policy remain largely in the hands of parliament, thus limiting the scope of judicial action
Any move to review the status of the HRA and complete Brexit would massively reduce the ability of the Supreme Court to have a significant impact on the operation of the executive or parliament