3.1.1.4 the judiciary Flashcards

Question

Senior Judiciary

Answer 1

The senior judiciary comprises justices of the Supreme Court (formerly the Lords of Appeal in Ordinary, or Law Lords), heads of divisions, Lords Justices of Appeal, High Court judges, and deputy High Court judges.

Answer 2

- Appointments to all positions in the senior judiciary were traditionally made by the monarch on the advice of the prime minister and the lord chancellor. The lord chancellor would consult existing senior judges through a process known as secret soundings. - It was said that this system lacked transparency, undermined the separation of powers, and resulted in a senior judiciary drawn almost exclusively from a very narrow social circle: public school and Oxbridge educated, white, male and beyond middle age. Such criticisms were at the heart of the 2005 Constitutional Reform Act.

Answer 3

The founding justices of the new Supreme Court were those working Law Lords in post on 1 October 2009. Although these individuals remained members of the House of Lords, they were barred from sitting and voting in the upper chamber for as long as they remained justices of the new Supreme Court. Under the Constitutional Reform Act 2005 those appointed to the court after 1 October 2009 are not automatically awarded peerages.

Answer 4

1) A vacancy arises 2) A five-member selection commission is convened to consider possible nominees and make a selection based on merit 3)The commission submita a report to the lord chancellor indentifying a nominee

Answer 5

Someone who has a senior courts qualification; is an advocate in Scotland or a solicitor entitled to appear in the Scottish Court of Sessions; or is a member of the Bar of Northern Ireland or a solicitor of the Court of Appeal of Northern Ireland.

Answer 6

candidates must have either held high judicial office for at least 2 years, or been a qualifying practitioner for a period of 15 years.

Answer 7

Vacancies in the UK Supreme Court are filled by an ad hoc selection commission, as opposed to the Judicial Appointments Commission (JAC) which deals with all other appointments to the senior judiciary. According to the Constitutional Reform Act 2005, this five-member, ad hoc commission should comprise: the president of the Supreme Court; the deputy president of the Supreme Court; one member of the JAC; one member of the Judicial Appointments Board for Scotland; and one member of the Northern Ireland Judicial Appointments Commission.

Answer 8

Although the appointments procedure still involves a government minister, their input is greatly reduced as they are not permitted repeatedly to reject names put forward by the selection commission.

Answer 9

Although one would hardly expect a superior court such as the UK Supreme Court to be entirely socially representative of the broader population — due to the qualifications for office and the importance of the role — the membership of the court has left it open to accusations of elitism. Such concerns have not been dispelled by appointments to the court between 2009 and 2016

Answer 10

Lord Reed - attended edinburgh, the oxford university

Answer 11

Lord Hodge - attended Cambridge

Answer 12

- Lord Lloyd-Jones - attended Cambridge - Lord Briggs of Westbourne - attended Oxford - Lord Kitchin - attended Cambridge - Lord Sales - attended Oxford and Cambridge - Lord Hamblen of Kersey - attended Oxford - Lord Leggatt - attended Cambridge - Lord Burrows - attended Oxford - Lord Stephens of Creevyloughgare - attended Manchester - Lady Rose of Colmworth - attended Oxford and Cambridge - Lord Richards of Camberwell - attended Cambridge

Answer 13

- the rule of law - Judicial independence and judicial neutrality

Answer 14

The rule of law is a key doctrine of the UK constitution under which justice is guaranteed to all. A. V. Dicey saw the rule of law as one of the ‘twin pillars’ of the constitution, the other being parliamentary sovereignty. (*one seat vacant in October 2009)

Answer 15

- no one can be puniched without trial - no one is above the law and are subject to the same justices - The general principles of the constitution result from the judges’ decisions rather than from parliamentary statute.

Answer 16

While the decisions of judges (i.e. case law or common law) certainly have a part to play in defining the UK’s constitutional arrangements, parliament remains sovereign and statute law reigns supreme. Any legal precedent can be overturned by the means of a simple Act of Parliament.

Answer 17

Again, while this would appear to be a principle that would hold true in all liberal democracies, there have always been those who are effectively above the law in the UK, including the monarch, foreign ambassadors and MPs. In the case of the latter, a number of MPs even tried to use parliamentary privilege as a way of ending legal proceedings taken against them over their expenses during the 2009 expenses scandal.

Answer 18

While this principle makes good sense in theory, it is not always maintained in practice. For example, terrorist suspects have been subject to a range of punishments without trial under measures passed since 2001, including indefinite detention, the imposition of control orders and the freezing of their assets.

Answer 19

The rule of law clearly demands that judges at all levels of the UK judiciary should operate with a high level of independence and dispense justice with a degree of neutrality. However, it is important to draw a clear distinction between judicial independence and judicial neutrality. The absence of judicial independence is a threat to judicial neutrality because the impartiality of judges is compromised if they are subject to external control. However, judicial independence does not guarantee judicial neutrality because judges may still allow their personal views to influence the way they administer justice.

Answer 20

- Judicial independence: - 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. - Judicial neutrality: - Judicial neutrality is where judges operate impartially (i.e. without personal bias) in their administration of justice. - Judicial neutrality is an essential requirement of the rule of law.

Answer 21

- Security of tenure’ enjoyed by judges. - Guaranteed salaries paid from the Consolidated Fund. - The offence of contempt of court. - Growing separation of powers. - Independent appointments system. - Training and experience of senior judges.

Answer 22

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

Answer 23

Judges’ salaries are classified as ‘standing services’ and are therefore paid automatically from the Consolidated Fund. This means that politicians are unable to manipulate judges’ salaries as a way of controlling them.

Answer 24

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 undue pressure being brought to bear by politicians or the public in general.

Answer 25

The downgrading of the post of lord chancellor and the creation of a new UK Supreme Court enhanced the separation between the senior judiciary and the other branches of government. Prior to these changes, the most senior judges, the Law Lords, sat in the House of Lords and the lord chancellor held significant roles in all three branches of government: executive, legislature and judiciary.

Answer 26

The Constitutional Reform Act 2005 saw 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 in place previously had been open to political bias.

Answer 27

Most senior judges have served an ‘apprenticeship’ as barristers and come to the bench having achieved a certain status within their chosen profession. It is argued that such individuals take considerable pride in their legal standing and are therefore unlikely to defer to politicians or public opinion, where this would be seen to compromise their judicial integrity.

Answer 28

- 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.

Answer 29

- 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.

Answer 30

In simple terms, of course, it is impossible to guarantee judicial neutrality; judges are human, after all, and they will inevitably bring some degree of personal bias to their work. However, the promise of a universal application of the law under the doctrine of the rule of law requires that such bias is not allowed to colour judicial decisions.

Answer 31

- The relative anonymity of senior judges. - Restriction on political activity. - Legal justifications of judgments.

Answer 32

Judges have traditionally operated away from the public eye. Until recently, judges rarely spoke out publicly on issues of law or public policy, and senior judges are still expected to avoid being drawn into open defence of their rulings, or criticism of those in government.

Answer 33

As with many senior civil servants, judges are not supposed to campaign on behalf of a political party or a pressure group. Although judges retain the right to vote, their political views or outlook should not become a matter of public record.

Answer 34

Senior judges are generally expected to offer an explanation of how their decisions are rooted in law. This requirement that decisions be clearly rooted in the law makes it less likely that senior judges will be guided by personal bias. Note that in the case of the UK Supreme Court, decisions are published in full on the court’s official website, along with press summaries of significant cases.

Answer 35

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 normally reflect a belief that they are able to put any personal bias they might hold to one side when administering justice. Although the security of tenure enjoyed by senior judges 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 moved away from more serious cases while their performance is monitored.

Answer 36

The main question mark over judicial neutrality comes from the narrow recruiting pool from which senior judges have traditionally been drawn, with most of those appointed to the higher tiers of the judiciary being privately schooled, Oxbridge-educated, white, middle-class men who are beyond middle age. How, it is argued, can judges be truly neutral when their own life-experiences are so very different from most of those who are brought before them? As we will see later in this chapter, the creation of the Judicial Appointments Commission (JAC) appears to have done little to address this problem, and the composition of the UK Supreme Court, although determined under entirely different procedures, is similarly unrepresentative.

Answer 37

Critics also point to the way in which senior judges have been drawn into the political fray in recent years, with the suggestion that the passage of measures such as the Human Rights Act (1998) has resulted in the politicisation of the judiciary. However, while some see this growing public profile and increased conflict between senior judges and politicians as a threat to judicial neutrality, it could just as easily be seen as evidence of growing independence and neutrality — not least because senior judges appear increasingly willing to take on the political establishment in defence of civil liberties.

Answer 38

Where individuals or institutions traditionally seen as being above the political fray, are dragged into it. Some see the way in which UK judges were drawn into areas of political controversy in the wake of the Human Rights Act 1988 as evidence of politicisation.

Answer 39

The body of legal precedent resulting from the rulings of senior judges. Sometimes referred to as case law or judge- made law, it is an important source of the UK constitution.

Answer 40

The process by which judges review the actions of public officials or public bodies in order to determine whether or not they have acted in a manner that is lawful.

Answer 41

From the Latin, meaning ‘beyond the authority’ or ‘beyond one’s powers’. The process of judicial review can be used to determine whether or not a minister or other government officer has acted ultra vires: that is, beyond the authority granted to them in law.

Answer 42

While the US Supreme Court can declare Acts of Congress unconstitutional, thereby striking them down, the UK Supreme Court has no such power in respect of parliamentary statute. This is because statute law remains the supreme source of constitutional law in the UK. Despite this, the UK Supreme Court wields considerable influence through its use of judicial review.

Answer 43

While it is helpful to have an awareness of the judiciary in its broader sense, the Supreme Court and the Courts of Appeals that operate directly below it are of most interest to students of politics. This is because it is these higher tiers of the judiciary that have the power to set legal precedent, establishing common law through their use of judicial review. In short, these higher courts clarify the meaning of the law as opposed to simply applying the letter of the law.

Answer 44

- Judicial review often requires senior judges to clarify the legal meaning of a particular law or regulation. Judicial review may also involve reviewing appeal cases heard previously at lower (inferior) courts. - As we have noted, the doctrine of parliamentary sovereignty and supremacy of statute law means that judicial review in the UK is generally seen as being less significant than in the USA, where the US Supreme Court can strike down pieces of regular statute that are judged to have violated the provisions of the US Constitution.

Answer 45

the phrase ‘judicial review’ was once taken to mean little more than the courts assessing the actions of those in power to ensure that they had not acted beyond the authority given to them in law; so-called ultra vires cases.

Answer 46

- the growing importance of European Union law - the elevated status given to the European Convention on Human Rights (ECHR) under the Human Rights Act 1998

Answer 47

A case in which the European Court of Justice (ECJ) established the precedent that UK courts can suspend UK statute law where it appears to violate EU law, at least until the ECJ is able to make a final determination as to the legality of the statute in question. The case took its name from a Spanish-owned fishing company, Factortame Limited, which had challenged the legality of the Merchant Shipping Act 1988 under European law.

Answer 48

Under the European Communities Act 1972, the UK incorporated the Treaty of Rome into UK law. The effect of this simple change was to give European laws precedence over conflicting UK statutes, whether past or present. For many years this simply meant that the UK government could be called to account at the European Court of Justice (ECJ). However, in the wake of the Factortame case (1990), UK courts have also been able to suspend UK statutes that appear to be in violation of EU law. This power will naturally disappear when the UK leaves the European Union in the wake of the Brexit vote.

Answer 49

United States of America v Nolan (2015) This case resulted from a claim against the US government under the Trade Union and Labour Relations Act 1992. Nolan, who had been employed by the US Army at a base in Hampshire, had argued that there should have been more consultation with workers’ representatives before making her redundant. The US government argued that the Secretary of State had acted ultra vires under the European Communities Act (1972), because the1995 regulations under which Nolan had made her original claim went beyond the basic rights given under EU Law. The Supreme Court found in Nolan’s favour, arguing that the Secretary of State had not exceeded his powers when issuing regulations in 1995.

Answer 50

The ECHR was established by the Council of Europe, an intergovernmental body that is separate from the European Union and not to be confused with the EU’s Council of Ministers or European Council. Alleged violations of the ECHR are investigated by the European Commission on Human Rights and tried in the European Court of Human Rights, based in Strasbourg. Again these bodies are not to be confused with the EU’s European Commission and European Court of Justice.

Answer 51

Before 1998, cases brought under the European Convention on Human Rights (ECHR) were heard at the European Court of Human Rights (ECtHR) in Strasbourg. The Human Rights Act (HRA) 1998 came into force in October 2000. It incorporated most of the articles of the ECHR into UK law, thereby allowing citizens to pursue cases under the ECHR through UK courts as opposed to having to go directly to the ECtHR in Strasbourg.

Answer 52

- Article 1 commits all signatories to protecting the rights included in the European Convention on Human Rights (ECHR). - Article 2 protects the right to life. - Article 3 prohibits torture and degrading or inhuman treatment. - Article 4 outlaws slavery and involuntary servitude. - Article 5 secures liberty and security of the individual against arbitrary arrest and imprisonment. - Article 6 guarantees a fair trial. - Article 7 prevents legislation that criminalises acts retrospectively. - Article 8 promotes respect for the individual’s private and family life. - Article 9 protects the freedom of thought, conscience and religion. - Article 10 enshrines the right to freedom of expression. - Article 11 protects the rights of association and assembly: for example, the right to form a trade union. - Article 12 protects the right of men and women to marry and start a family. - Article 13 allows for the redress of grievances where convention rights have been violated. - Article 14 prohibits discrimination in the application of rights guaranteed in the ECHR. - Article 15 allows for suspension or ‘derogation’ of some of the rights guaranteed by the ECHR in times of national emergency. - Article 16 permits restrictions on the political rights of foreign nationals. - Article 17 prevents rights protected in the ECHR from being used to limit other convention rights. - Article 18 holds that the ‘get-out clauses’ included in some articles of the ECHR should not be abused as a way of limiting those rights protected in more general terms.

Answer 53

As the Human Rights Act is based on the Council of Europe’s ECHR, rather than on EU law, it is not superior to parliamentary statute. Under the HRA, the Supreme Court is only able to issue a declaration of incompatibility where a parliamentary statute appears to violate the rights guaranteed — and parliament is not obliged to amend the offending statute. That said, the HRA (like the ECHR) has a ‘persuasive authority’ that has enhanced the protection of individual rights in the UK. The following case study illustrates both the extent of the ultra vires power and its limitations, while also demonstrating the extent of the judiciary’s power under the European Convention on Human Rights (and the Human Rights Act that incorporates that convention into UK law).

Answer 54

R. (Reilly) v Secretary of State for Work and Pensions (2016) -Reilly argued that, in requiring her to work for a private company in order to receive her benefit payments, the Department of Work and Pensions (DWP) had infringed the protection against slavery provided in Article 4 of the European Convention on Human Rights (ECHR). On appeal in 2013, the Supreme Court concluded that while the DWP had not infringed the ECHR in introducing ‘welfare to work’, the scheme was unlawful because the department had operated ultra vires, i.e. beyond the authority given to it by parliament.

Answer 55

A process by which a country is exempted, perhaps temporarily, from observing a law or regulation it has previously agreed to abide by. Under Article 15 of the European Convention on Human Rights (ECHR), national governments are permitted to derogate some of the convention’s articles in times of national crisis.

Answer 56

As we have seen, the HRA does not have the same legal status as EU law or the US Bill of Rights, with the latter being both entrenched and superior to regular statute. As a regular piece of statute, the HRA can be amended, suspended (derogated) — in its entirety or in part — or simply repealed, like any Act.

Answer 57

While the courts cannot strike down parliamentary statute under the HRA, they can make a declaration of incompatibility and invite parliament to reconsider the offending statute. Furthermore, where statute law is silent or unclear, the courts can make even greater use of the HRA by using its provision to establish legal precedent in common law. In addition, we should remember that the HRA also has a hidden influence through the process by which draft legislation is now examined by parliament’s Joint Committee on Human Rights in order to ensure that it is compatible with the HRA.

Answer 58

R. (Tigere) v Secretary of State for Business, Innovation and Skills (2015) Beaurish Tigere, who had arrived in the UK from Zambia aged 6 and subsequently completed her A-levels, was not eligible for a student loan for her undergraduate degree because she did not have indefinite leave to remain in the UK and would not be able to apply to the UK Border Agency for this until 2018. In 2015, the UK Supreme Court accepted her appeal on the grounds that the negative impact on the appellant’s rights under Article 2 of the ECHR (the right to education) and also Article 14 (prohibiting discrimination) could not be justified.

Answer 59

- The physical relocation of the UK’s top court to its new accommodation in Middlesex Guildhall in 2009, though highly symbolic, did little to change the legal– constitutional relationship between the judiciary, the executive and the legislature (parliament). - Although the Human Rights Act gives judges the right to issue a ‘declaration of incompatibility’ where an Act of Parliament appears to have violated the ECHR, parliament is under no legal obligation to fall into line with court rulings. - While senior judges have the ability to rule that ministers in the executive have acted beyond their statutory authority (i.e. ultra vires), those very 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 Human Rights Act and/or complete Brexit would massively reduce the ability of the Supreme Court to have a significant impact on the operation of the executive or parliament.

Answer 60

- In diminishing the role of lord chancellor and removing the UK’s most senior judges from the House of Lords, 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 in the wake 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 in parliament now look to head off potential conflict in the courts by ensuring that all legislation complies with the HRA and EU law.

Answer 61

The UK does not have an entrenched, codified and supreme constitutional document — a set of ‘fundamental laws’ akin to the US Constitution. As we have seen, therefore, it is impossible for the UK Supreme Court to strike down Acts of Parliament or move against the government in the style in which its US counterpart can tear up Acts of Congress and force the president to back down.

Answer 62

- revisiting and reviewing earlier legal precedent established under common law and case law (judge-made 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 Human Rights Act 19

Answer 63

- While the court has certainly developed a more public profile since its creation in 2009, Lord Philips’ prediction that the change would essentially be one of ‘form rather than of substance’ has largely been borne out. In an article marking the first 5 years of the court, Lord Neuberger identified ‘key cases’ that clearly do not represent a significant departure from what the Law Lords might have done previously. - In the years since Lord Neuberger selected his ‘top five’, the kinds of rulings that the court has handed down continue to be similar in character to those that the Law Lords might have issued in the years prior to the establishment of the Supreme Court. This was certainly true in the case of R v Jogee (2016), as we have seen, where the precedent of joint enterprise was reviewed and refined.

Answer 64

Where the impact of differences in the Supreme Court’s interpretations over time can appear tantamount to a legislative change, even though parliament has made no change to statute law.

Answer 65

Such a question is generally rooted in the notion that there has been a blurring of the traditional distinction between those politicians who make the law and the judges who should simply apply it: that senior judges have become little more than ‘politicians in robes’. Such a distinction will clearly always be flawed as a result of the role that senior judges play in interpreting and clarifying the law when resolving disputes that arise under it. The Supreme Court’s ability to establish precedent through common law could therefore be seen as a quasi-legislative power.

Answer 66

- Criticism of the Supreme Court on the grounds that it is too powerful for an entirely unelected body is clearly misguided. - As we have already established, the UK Supreme Court has no more power than the Appellate Committee of the House of Lords that it replaced back in 2009. - We should remember that it is rare for those in senior judicial positions worldwide to be elected to office. - Judicial independence requires that senior judges are free to interpret the law and dispense justice fairly, without fear of being arbitrarily removed from office through the ballot box (or by any other means). - From the perspective of the UK Supreme Court, it is clear that judicial independence demands a degree of unaccountability. It is an essential feature of democracy that we must at times place our trust in those who are not directly accountable to the citizenry at large.

Answer 67

- traditional authority based on established traditions and customs - charismatic authority based on the characteristics of leaders - legal–rational authority granted by a formal process, such as an election

Answer 68

Although the UK Supreme Court has no more formal power than that held previously by the Appellate Committee of the House of Lords, and could not really be said to ‘tick’ any of Weber’s boxes, it could be argued that the new court nonetheless possesses greater authority than the body it replaced. This is because the very nature of its institution and its operation has changed the way in which it is perceived as an institution, thus transforming the way in which other institutions, the media and the wider public have come to view and accept its rulings.

Answer 69

- a more independent and less opaque appointments process than that which applied to the Law Lords - a clearer separation of powers accompanied by a clear physical separation between legislature and judiciary - an ongoing process of ‘demystification’ — with public visits, an intelligible website and enhanced coverage in the mainstream media

Answer 70

The UK’s departure from the European Union will inevitably have an impact on the status, power and authority of the Supreme Court. It is important, however, to distinguish between those institutions and processes which are part of the EU, and those which are not.

Answer 71

Those who argued in favour of the UK leaving the EU have often also been the fiercest critics of the European Court of Human Rights (ECtHR), the body established in 1959 to hear cases arising under the 1950 European Convention on Human Rights (ECHR). That convention, incorporated into British law under the Human Rights Act (HRA) 1998, is problematic for those who see it as a threat to the independence and sovereignty of the Westminster Parliament. Irrespective of the merits or demerits of that view, the reality is that the ECHR was established not by the European Union, but by the Council of Europe — an entirely separate organisation, founded in 1949 by Britain and nine other European states

Answer 72

Thus leaving the EU would not, in itself, remove our obligations under the ECHR, any more than repealing the HRA would. The only way to remove ourselves from the jurisdiction of the ECtHR would be to withdraw from the ECHR itself — an almost unthinkable act, given that all European states (with the exception of the Vatican City, Belarus and Kazakhstan) are current signatories.

Answer 73

- European court of Human rights: - It was established by the Council of Europe. - It hears cases brought under the European Convention on Human Rights. - It is based in Strasbourg but is not an EU institution -European court of justice: - It is the ‘supreme court’ of the European Union. - It hears cases arising under EU law. - It is based in Luxembourg.

Answer 74

While leaving the EU will have little or no direct impact on the status of the HRA, the ECHR or the ECtHR, Brexit would involve withdrawing from the Treaty of Rome, meaning that EU law would no longer take precedence over UK law and the European Court of Justice (ECJ) would no longer have jurisdiction over the UK. A decision to withdraw from the ECHR as well as the EU (removing the UK from the jurisdictions of both the ECtHR and the ECJ) would obviously leave the UK Supreme Court in a greatly enhanced position.

Answer 75

- A proportion of its current caseload relates to EU law. - The removal of a court that is, in theory, superior to the Supreme Court in some aspects of law would enhance the Supreme Court’s status and authority.

Answer 76

- Under the US Constitution, individual US states are free to organise their own state-level judiciary largely as they see fit. As a result, UK/US comparisons tend to focus on the higher levels of the US federal judiciary in the USA and the senior judiciary in the UK. - The US judiciary, like the UK judiciary, is broadly hierarchical in structure. The US Supreme Court sits above 13 US Federal Circuit Courts of Appeal, with US District Courts, the US Claims Court and the US Court of International Trade at the lowest tier. - Where as the UK Supreme Court comprises 12 members (the president of the court, the deputy president of the court and ten justices of the court), the US Supreme Court has numbered 9 justices since 1869 (with one chief justice and eight associate justices). - US courts, like their UK counter parts ,are expected to operate with high levels of judicial independence and judicial neutrality. Judges on both sides of the Atlantic must rely on other state institutions to enforce their judgments. The UK Supreme Court in herited its main powers from the Law Lords who sat in the Appellate Committee of the House of Lords, which the Supreme Court replaced in 2009.

3.1.1.4 the judiciary Flashcards

(100 cards)