Describe the composition of the UK Judiciary:
- (Used to be) the European Court of Justice & European Court of Human Rights
- The UK Supreme Court
- Court of Appeals (Civil/ Criminal)
- Crown Court & High Courts
- Magistrates’ Courts, County Courts, Tribunals
When and how was the Supreme Court established?
- Established by the 2005 Constitutional Reform Act
- Set up in 2009
- Replaced the previous “Law Lords” who sat in the HOL
How are Supreme Court Judges appointed?
- Appointed through the 15-member Judicial Appointments Committee (JAC)
- Lord Chancellor (political) formally approves appointments
Functions of the Supreme Court?
- Clarify the meaning of law
- Act as a final court of appeal in the UK
How many Judges make up the Supreme Court?
12 - Although typically only 5-9 will hear a court case (must be odd so verdict may be reached).
Composition of the Supreme Court?
- Majority are white/ male
- Only one female judge currently
- All but one of the current judges attended Oxford or Cambridge University
Key principles of the Supreme Court?
- The Rule of Law
- Judicial Independence
- Judicial Neutrality
Judicial Neutrality?
Refers to the absence of any form of partisan or politically biased judgements. - a refusal to ‘take sides’.
Ways in which Judicial Neutrality may be maintained?
- Judges cannot sit in on cases involving associates/ family members
- Must avoid open political activity
Ways in which Judicial Neutrality has been criticised?
- Due to their narrow background (white/male/ privately educated) judges have been argued to possess a conservative bias e.g. Lady Hale pointed out that since her appointment, the 13 other judges appointed were all white/ male and majority privately educated.
- Rise in Judicial Activism, especially relating to Human Rights/Civil Liberties cases, where Judges will openly criticise actions of the govt
Judicial Independence?
The principle that the actions of Judges should not be influenced from pressure from other branches of government.
Ways in which Judicial Independence may be maintained?
- The appointment of Judges by the independent JAC, and the fact that the signing off of the Lord Chancellor is merely a ‘formality’
- Security of Tenure: Judges are only removed from the Court at a certain age, and cannot be threatened with removal as a result of decisions made
- Judges’ pay is decided by an independent pay review body, without interference from ministers
- The Court is physically separate from the legislature and govt (unlike the previous Law Lords)
Ways in which Judicial Independence has been criticised?
- 2011: Concerns raised by Lord Phillips regarding the impact of ‘spending cuts’ on the Courts system
- Supreme Court heavily criticised by some ministers and the right-wing press following the Article 50 ruling, arguing it would possibly put pressure on future decisions of judges
Judicial Review?
The judiciary’s ability to review whether the governments actions are compatible with existing laws - often used in relation to human rights issues.
What can the Supreme Court do if it finds that a piece of govt legislation conflicts with the principles of the Human Rights Act?
- It issues a ‘declaration of incompatibility’
- Following this, the government is expected to modify their action/ legislation
- Although the Court cannot compel the government to act, only advise
Ultra Vires? Example?
-When the Court may determine through Judicial Review that a government minister or institution has acted beyond the remit of their powers, without authority, despite requiring it.
- e.g. 2010: The Court ruled the government had acted unlawfully when insisting that convicted sex offenders should be registered with the police for life - argued it breached their human rights.
Arguments that the Supreme Court does effectively challenge the government?
- The SC’s position as the ‘final court of appeal’ means they only deal with the most significant matters
- Declarations of incompatibility put pressure on the government to act
- The increasing degree of judicial activism reflects an increasing willingness to challenge the government
- The Judiciary’s independence makes it difficult for the government to control
- Introduction of the Human Rights Act makes it easier for the Supreme Court to uphold liberties and challenge government
Arguments that the Supreme Court does not effectively challenge the government?
- Judges are bound by the law passed by Parliament - they cannot make law themselves. The government could use Parliament to pass laws to suit its own needs
- A declaration of incompatibility cannot strike down a law, only recommend that it be amended
- The Court cannot be proactive (it must wait for cases to come to them)
- Concerns raised over the extent to which the judiciary is neutral/ independent
- The Human Rights Act is not entrenched and therefore could be replaced/ removed by government
Factortame Case?
Factortame Ltd V Secretary of State for Transport
- Factortame took the case to the British Govt after it was established that ships were required to have a majority of British owners, if they were to be registered in the UK, claiming that this was a breach of EU law.
- The significance was the fact that EU law took supremacy over National law, paving the way for further political integration of EU law.
