Unit 4: The Supreme Court

Question 1

What are the roles of the Supreme Court?

Answer 1

-The final court of appeal for all UK civil cases and criminal cases from England, Wales and Northern Ireland - plays an important role in the development of the UK
-Cannot consider a case unless a relevant order has been made in a lower court
-Hears appeal on arguable points of law of general public importance
-Concentrates on cases of the greatest public and constitutional importance
-Maintains and develops the role of the highest court of the UK as a reader in the common law world

Question 2

What is the Supreme Court?

Answer 2

Highest court of appeal for all cases in Wales, NI and England and civil cases in Scotland

Question 3

Why was it necessary to introduce a Supreme Court in 2009?

Answer 3

-The principle of separation of powers in a cornerstone for the constitution - there should be separation between those who make the laws and those who review them and judge or interpret them
-allowed the Supreme Court to be more accessible to the public because in the lords, it was less accessible to enter, allow people to understand what is being considered

Question 4

What act set up the Supreme Court?

Answer 4

Constitutional reform act 2005

Question 5

What will have happened before a civil or criminal case reaches the Supreme Court?

Answer 5

-May go through 3 other courts, an NI or Scotland case will go through their legal system e.g. magistrates court, high court or crown court

Question 6

What name is given to the highest criminal court in Scotland?

Answer 6

The High Court of Justiciary

Question 7

Which other countries are represented by the Supreme Court?

Answer 7

Judicial Committee of the Privy Council - countries in the commonwealth

Question 8

What cases will reach the Supreme Court?

Answer 8

Those who affect a lot of the public and represent a wider issue in society - those that have an impact on a large number of people - those that are considered significantly important for the nation

Question 9

Who is under-represented in the Supreme Court?

Answer 9

Females - lady Hale was the first who was appointed - there arent a lot of women at the top of the legal system to be fit for the job

Question 10

How many justices are there in the Supreme Court?

Answer 10

12

Question 11

How was the court appointed before the 2005 CRA? What were the issues with this?

Answer 11

-Previously, the senior judiciary was appointed by the monarch on the advice of the PM and Lord Chancellor
-LC would consult existing senior judges through secret soundings (informal and secretive way that judges were appointed)
-lacked transparency, undermined separation of powers and resulted in an elitist senior judiciary drawn from a limited number of people - reason behind the CRA 2005

Question 12

What did the CRA 2005 mean for the appointment process of justices?

Answer 12

-Constitutional Reform Act 2005 - meant that after October 2009, a Supreme Court judge didnt become a lord
-To be appointed you must: hold a high judicial office for at least 2 years OR be a qualifying practitioner for 15 years (someone who has a senior courts qualification)
-Vacancies filled by an ad hoc selection commission of 5 individuals unlike the JAC which makes all the other appointments to the Supreme Court (judicial appointments commission)
-The appointment process does involve the PM but their power is minimal - cannot reject names put forward by selection commission - just informed of decisions

Question 13

How representative is the Supreme Court? What can this mean for those seeking justice?

Answer 13

-Not at all representative of the UK, only 2 women and no people of colour
-Mainly white men
-Most are still Oxbridge educated
-So, they don’t represent the UK, which can be disheartening for many especially those who must seek justice from those who have never been in a similar position to the individual that the SC is dealing with

Question 14

What is a principle? With an example?

Answer 14

-Overarching values or standards that guide judicial interpretation and decision making - its a guidelines - can influence a doctrine
-e.g. the Rule of Law - created with Magna Carta where no one is above the law
-e.g. the Principle of Proportionality - to maintain human rights so that extreme punishment cannot be given as punishment
-e.g. the Principle of Rights and Equity - justice must be served and the outcome must be intense enough to ensure justice

Question 15

What is a doctrine? Examples?

Answer 15

-established legal concepts or rules derived from precedents, statues, or constitutional principles, its a set of rules that the courts apply to all cases - ensures consistency in court cases - judges follow these doctrines unless there’s a compelling reason not to - its a rule
-e.g. the Doctrine of Precedent (stare decisis) - the UK SC adheres to previous decisions although it can depart from them if there’s interest of justice
-e.g. the Doctrine of Parliamentary Sovereignty - courts cannot overrule parliament
-e.g. the Doctrine of Separation of Powers - allows checks and balances

Question 16

Who is A V Dicey and what does he say about the rule of law?

Answer 16

-A V Dicey, was a British Whig jurist and constitutional theorist - known as the author of Introduction to the Study of the Law of the Constitution
-The rule of law is one of the twin pillars of the constitution, with the other being parliamentary sovereignty

Question 17

What are the 3 main strands of the rule of law according to Dicey?

Answer 17

1. No one can be punished without trial
2. No one is above the law and all are subject to the same justice
3. The general principles of the constitution (like personal freedoms) result from the judges decision rather than from parliamentary statute

Question 18

What evidence is here that the rule of law is threatened in the UK?

Answer 18

1. Strand 1 makes sense in theory but isn’t maintained in practice e.g. terrorists subjects have been subjects to a rage of punishments without trial under measures passed since 2001 like indefinite detentions or freezing of their assets
2. In strand 2, the monarch, however, is above the law as well as MPs and foreign ambassadors - a number of MPs use parliamentary privilege to end legal proceedings taken against them over their expenses during the 2009 expenses scandal
3. In strand 3, the decisions of judges like case law or commons law, certainly have a part to play in defining the UK’s constitutional arrangements, parliament remains sovereign and statue law reigns supreme - any legal precedent can be overturned by an Act of Parliament

Question 19

What is judicial responsibility?

Answer 19

The principle that those in the judiciary should be free from political control - allows judges to do the right thing and apply justice properly without fear of the consequences

Question 20

What are the 6 pillars that maintain judicial independence in the UK?

Answer 20

1. Security of tenure
2. Guaranteed salaries paid from the Consolidated Fund
3. The offence of contempt of court
4. Growing separation of power
5. Independent appointments system
6. Training and experience of senior judges

Question 21

What is meant by security of tenure as a way of maintaining judicial independence in the UK?

Answer 21

-appointed for an open ended term limited only by the requirement that they must retire by the age of 75
-politician cannot seek to bring influence to bear by threatening to sack or suspend them
-members of senior judiciary can only be removed as a result of impeachment proceedings requiring a vote in both Houses of Parliament

Question 22

What is meant by guaranteed salary paid from the Consolidated Fund as a way of maintaining judicial independence in the UK?

Answer 22

-judges salaries are classified as standing services and are therefore paid automatically from the CF
-politician cannot manipulate judges salaries as a way of controlling them

Question 23

What is meant by the offence of contempt of court as a way of maintaining judicial independence in the UK?

Answer 23

-under sub jedice rules, the media, ministers and other individuals are presented from speaking out publicly during legal proceedings
-justice can be administered fairly without pressure from the public or a politician

Question 24

What is meant by growing separation of power as a way of maintaining judicial independence in the UK?

Answer 24

-downgrading of the post of lord chancellor and the new SC enhanced separation of powers
-previously Law Lords sat in the Lords and the lord chancellor had a significant role in all 3 branches

Question 25

What is meant by independent appointment system as a way of maintaining judicial independence in the UK?

Answer 25

-Constitutional Reform Act 2005 saw the creation of the Judicial Appointments Commission
-greater transparency in appointments and stopped political bias

Question 26

What is meant by training and experience of senior judges as a way of maintaining judicial independence in the UK?

Answer 26

-have a status in their chosen profession so are unlikely to defer to politicians or public opinion

Question 27

Reasons why the UK judiciary has become more politicised in recent years?

Answer 27

-The Human Rights Act 1998 has drawn senior judges into the political fray by requiring them to rule on the merit of an individual piece of statute law as opposed to its application.
-The Factortame case (1990) established the precedent that UK courts can suspend Acts of Parliament where they are thought to contradict EU law
-The creation of the Supreme Court in 2009 and the physical relocation of those senior judges to Middlesex Guildhall has brought senior judges into the public arena and subjected them to greater scrutiny by the media.
-Politicians have broken with convention by publicly criticising rulings handed down by senior judges.
‘Brexit minister’ (Secretary of State for Exiting the European Union) David Davis, did this when he reacted to a November 2016 High Court ruling which stated that the government could not trigger Article 50 without parliamentary approval.

Question 28

Reasons why the UK judiciary has not become more politicised in recent years?

Answer 28

-The appointments process for senior judges has been made more transparent and less open to accusations of political interference through the creation of the JAC and the separate Supreme Court appointment process.
-Although ‘politicisation’ is often associated with political interference and/or control, the UK senior judiciary has, in fact, become more independent in the wake of the Constitutional Reform Act 2005, such as through the downgrading of 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 29

What is judicial neutrality?

Answer 29

Where judges operate impartially in the administration of justice - essential requirement in the rule of law

Question 30

What are the 4 ways how judicial neutrality is achieved?

Answer 30

1. The relative anonymity of senior judges
2. Restriction on political activity
3. Legal justifications of judgments
4. High level training

Question 31

What is meant by the relative anonymity of senior judges as a way that judicial neutrality is achieved?

Answer 31

-they have traditionally operated away from the public eyes
-until recently, judges rarely spoke on public issues of law or public policy
-senior judges are expected to avoid being drawn into open defence of their rulings

Question 32

What is meant by restriction on political activity as a way that judicial neutrality is achieved?

Answer 32

-judges arent supposed to campaign on a political party or pressure group like I I’ll servants - but they have a right to vote
-political views shouldn’t be public

Question 33

What is meant by legal justifications of judgments as a way that judicial neutrality is achieved?

Answer 33

-senior judges must offer an explanation on how their rulings is in the law - less likely to be biased
-decisions are published in full on the courts website, along with press summaries of cases

Question 34

What is meant by high level training as a way that judicial neutrality is achieved?

Answer 34

-regulated by the Law Society and must be of high profession
-senior judges must have served for many years as a barrister and can only be put into higher ranks if they can remove bias when administering justice
-judges may be moved away from serious cases while their performance is monitored

Question 35

What are the threats to judicial neutrality?

Answer 35

-The narrow recruiting pool senior judges were drawn from - private school, Oxbridge, white, middle class, men, beyond middle age - cannot give true neutrality if their life experiences are very different to those brought before them - unrepresentative
-The Human Rigths Act 1998 led to politicisation in the judiciary - growing public profile and increased conflict between senior judges and politicians as a threat to judicial neutrality, it could be seen as a sign of growing independence

Question 36

Reasons why the SC is powerful?

Answer 36

-Investigate the highest of crimes
-Interpret the law
-Clarify law
-Highest court for all civil cases
-Represents the commonwealth
-Judicial independence
-Judicial neutrality
-More authority than the previous system

Question 37

Reasons why the SC is not powerful?

Answer 37

-Only focus on appeal
-The Parliament overrides
-They cannot rule that a piece of legislation is unlawful
-Don’t represent the population - mainly white males
-No impeachment
-EU law overrides it
-Have to be in line with the ECHR
-Judicial independence is threatened by politicisation and accountability
-Judicial neutrality id threatened

Question 38

What are the powers of the SC?

Answer 38

-Clarify the meaning of the law, especially where disputes or inconsistencies occur.
-Set legal precedents, often by reviewing earlier legal precedents and re-establishing common law.
-Review the actions of public official or public bodies to determine if they have acted lawfully.
-Determine whether ministers or state bodies have acted ultra vires, ie. Beyond the authority granted to them.
-Issuing ‘declarations of incompatibility’ under the HRA 1998 - can say that a statute doesnt fit in with the ECHR