4 The Judiciary Flashcards
(162 cards)
1
Q
When was the UKSC prorogation ruling?
A
24/9/19
2
Q
When was the first time the UKSC ruled in the use of the PM’s use of monarch prorogative power?
A
Prorogation ruling
3
Q
Who gave the court the power to challenge prorogation?
A
The court itself
4
Q
How many judges are on the UKSC?
A
12
5
Q
What is the official role of the UKSC?
A
Final court of appeal for all cases in England, Wales and Northern Ireland, as well as hearing appeals from civil cases in Scotland. NO CRIMINAL APPEALS FROM SCOTLAND THOUGH
6
Q
Why is the UKSC’s ruling important?
A
Establishes legal precedence
7
Q
When did the UKSC start existing? Who was the final court of appeals before then?
A
October 2009
Law Lords, who sat on the Appellate Committee of the House of Lords
8
Q
Why was there fusion of powers before October 2009?
A
Lords on the Appellate Committee were also legislators
9
Q
Is there a single UK judicial system?
A
No, it is different between the devolved nations. The UKSC is the final court of appeal for all though
10
Q
What are the 4 ranks of court in the UK judiciary?
A
- UKSC
- Court of Appeal
- High Court
- lower Courts
11
Q
What is above a tribunal?
A
County Court
12
Q
What is above a Magistrates?
A
Crown Court
13
Q
What is above both Crown and County?
A
High Court
14
Q
What is above the High Court?
A
Court of Appeal (civil or criminal division)
15
Q
What is above the Court of Appeal?
A
UKSC
16
Q
How are judges powerful in a constitutional sense?
A
Common law - case law which fills a gap in statute law
17
Q
How were members of the senior judiciary previously appointed?
A
PM and Lord Chancellor would advise the monarch to pick them based on ‘secret soundings’
18
Q
What are 3 issues with the Lord Chancellor appointment system for judges?
A
- Lacked transparency
- All judges had a similar background
- Separation of powers issue - Lord Chancellor is an executive position
19
Q
Why did the CRA come about?
A
Concerns as outlined in the previous bullet point - lack of transparency in the judicial appointments process
20
Q
What did the CRA do to reduce the inequity in judicial appointments?
A
- Gave most judicial appointments to an independent JAC (Judicial Appointments Commission) which would accept open applications
- Set up the UKSC
21
Q
Is the appointment process for the UKSC via JAC?
A
No, there is a separate system
22
Q
How does the appointment system work for the UKSC?
A
- A five member independent selection committee is convened to consider nominees (who may apply) and make a selection based on merit
- The Lord Chancellor considers the selection
- The Lord Chancellor notifies the PM if they accept
- The PM must notify the monarch
- Monarch issues letters patent and candidate becomes a UKSC justice
23
Q
Has the new appointment process made the UKSC representative of the UK?
A
No
24
Q
What are 5 facts which show that the UKSC is not representative of the UK (2021)?
A
- Only one of 12 went to state comprehensive
- Only 1 of 12 did not attend either Oxford or Cambridge
- The youngest member was 59 years old
- Only 2 out of 12 were women
- There have been no ethnic minority members of the UKSC
25
What is the qualifier that makes a lack of representation on the UKSC less significant?
Considerable prior legal experience - it is a problem with the legal system, not with the UKSC
26
What are 2 examples that suggest UKSC is getting better at representativeness?
2009-2021
1. Proportion who attended private secondary school has fallen 16% to 75% from 91%
2. Number of women has doubled from 1 to 2
27
What are 3 key reasons for the UKSC's existence?
1. Separation of powers
2. Judicial appointment process not transparent
3. Confusion amongst public over court system
28
What are 3 key functions of the UKSC?
1. Final court of appeal in England, Northern Ireland and Wales
2. Appeals from civil cases in Scotland
3. Hear appeals where there is uncertainty over the meaning of the law
29
What are 3 key principles of the UKSC?
1. Rule of law
2. Judicial independence
3. Judicial impartiality
30
What are the 3 components of British rule of law?
1. No punishment without trial
2. No one is above the law
3. General principles of the Constitution result from UKSC decisions, but they can be overturned by simple consensus of Parliament
31
What is an example of how no punishment without trial may not be true in practice?
Since 2001, many terrorist suspects have had 'emergency measures' such as detention without trial
32
Is it always the case that nobody is above the law?
MPs have parliamentary privilege
33
How do judges influence the constitution?
Case law/common law
34
What is judicial independence?
The principle that those in the judiciary should be free from political control
35
What is judicial impartiality?
Judges must operate without personal bias
36
What are 6 ways the UK Constitution upholds judicial independence?
SASCTE
1. Tenure
2. Salaries
3. Contempt of Court
4. Separation of Powers
5. Appointments system
6. Experience
37
How does security of tenure ensure judicial independence?
Politicians cannot blackmail judges with job insecurity
38
How do secured salaries ensure judicial independence?
The Consolidated Fund pays judge's salaries, meaning they are above political manipulation
39
How does the contempt of court help judicial independence?
Sub judice - the media, ministers and wider public are prevented from speaking out publicly during legal proceedings
40
How has there been a greater separation of powers?
1. Independent UKSC
2. New appointments system circumventing the Lord Chancellor
## Footnote
Government cannot apply direct pressure to courts
41
How has an independent appointment system helped judicial independence?
Similar to separation of powers - government interest removed
42
How does training and experience help judicial independence?
They have high esteem of their careers
43
What are 4 ways judicial impartiality is ensured?
JAPE
1. Anonymity
2. Political activity
3. Justification
4. Education
44
Where is the SCOTUK's power as a court of appeal slightly diminished?
It is not the highest court of appeals in Scotland; the High Court of Justiciary is
45
What kind of cases get to the SCOTUK? Why is there a limitation here?
Cases of public significance appealing from lower courts
## Footnote
You can only get to the UKSC by appeal, which is expensive
46
How does anonymity ensure judicial impartiality?
Judges are not supposed to be public figures
47
How does a lack of political activity ensure judicial impartiality?
Judges may vote, but campaigning with parties/pressure groups is forbidden
48
Why do legal justifications encourage judicial impartiality?
Judges must explain and justify their decisions
49
Why does high level training encourage judicial impartiality?
Judges are trained to subdue personal bias
50
Is there evidence of UKSC politicisation?
Potentially as they have been drawn in by HRA 1998
51
What are 2 threats to judicial impartiality and the caveat?
1. Poor representation
2. Politicisation
## Footnote
Politicisation may not be there. It may just be the UKSC actually being more judicially independent and being more vocal in the defence of civil liberties
52
What are 4 ways the UKSC could be argued to have become politicised?
1. Move to Middlesex Guildhall has potentially undermined judicial impartiality by bringing judges into the limelight
2. HRA 1998 - judges drawn into political fray because they had to rule on the merit of statute law
3. 1990 Factortame - judges can suspend UK law where it contravenes EU law
4. Politicians more openly disdaining of judicial ruling e.g. JRM called prorogation ruling 'disgraceful'
53
What are 3 ways the UKSC is becoming less politicised?
1. JAC
2. Separation of powers
3. Increased conflict means more judicial independence
54
Can UKSC 'strike down' Acts of Parliament like its US counterpart?
No - there is no supreme law to overrule
55
Does the UK judiciary have judicial review?
Yes
## Footnote
They may still determine whether an individual has acted legally
56
Is UK judicial review just the process by which judges check whether public officials have acted within the law?
No, higher-tier courts can establish legal precedent or common law
57
What is the traditional capacity of the UK court system towards judicial review?
Ultra vires cases
58
What does ultra vires mean?
Beyond one's legal power or authority - the court's ability to check when somebody has overstepped their enumerated authority
59
What is an example of an ultra vires ruling?
Reilly v Secretary of State for Work and Pensions in 2013
## Footnote
Secretary of State had acted ultra vires in effectively forcing Reilly to work. UK Government changed the law retrospectively so it was legal in 2013. However, the UKSC pointed out that this was against Article 6 of the ECHR (denying right to a fair trial by changing the law), but reminded the government that since it was sovereign it was up to them to indicate a way forward
60
What are 2 reasons judicial review power has grown in recent years?
1. Incorporation of EU law
2. Impact of HRA 1998
61
What are 2 ways EU law took precedence over UK law?
1. Treaty of Rome which ECA 1972 incorporated made EU law superior
2. Factortame 1990 gave UK courts the right to suspend statute law where incompatibilities exist
62
What is Factortame?
1990 cases where a Spanish fishing company successfully challenged the Merchant Shipping Act (UK law) as incompatible with EU fishing laws
63
What was the impact of HRA?
UK citizens could pursue ECHR contravention cases in UK courts rather than having to go to ECHR in Strasbourg
64
What is an example of a case heard under HRA?
2015 Beaurish Tigere - arrived in the UK from Zambia aged 6. Her father was on a student visa and she remained with her mother when he left. As such, her residency was illegal, but the Border Agency allowed her to stay to complete a degree, but she couldn't secure a student loan because of her status. She thus decided to challenge her status in the courts and won because the impact on her Article 2 (education) and Article 14 (free from discrimination) ECHR rights were threatened
65
What is the limitation of HRA?
Courts can only inform Parliament where there is incompatibility with HRA and ask Parliament to reconsider. They cannot 'strike down' legislation
66
What is the subtle effect of HRA?
There is now an additional pre-legislative scrutiny stage where legislation is checked for HRA compatibility
67
What is another way judicial review can work?
Senior courts can overrule the ruling of lower courts
68
What are 4 ways court power over the executive has increased in recent years?
1. CRA - courts more independent
2. HRA - enshrined ECHR means courts can directly challenge Acts of Parliament
3. Factortame - courts can declare EU law superior
4. Maastricht Treaty 1992 - more EU laws
69
What are 3 ways court power over the executive has NOT increased in recent years?
1. HRA incompatibility is not all that significant. If an incompatibility exists, Parliament is under no obligation to revise that legislation
2. Brexit - EU laws are going
3. Retrospective legislation means ultra vires is not all that significant
70
Is the ECtHR an EU institution?
No, it is run by the Council of Europe to ensure compatibility with ECHR, which was passed by Council in 1950
71
Does leaving the EU mean we are not subject to ECHR jurisdiction?
No - we would have to leave the Council of Europe which would be pretty egregious
72
Even if we repealed HRA in disgust at the 'power' of judges, why wouldn't it change anything?
The European Commission on Human Rights would still raise cases to the European Court of Human Rights and we would still have to deal with this
73
What is the European Court of Justice?
The EU court, which hears cases arising under EU law, which is based in Luxembourg
74
What was the effect on EU law of Brexit?
1. ECJ no longer has jurisdiction
2. Factortame no longer relevant
75
How has UKSC power increased with Brexit?
A proportion of caseload was EU law related. Our withdrawal means they are the only authority
76
In summary, what are the 3 main powers of the UKSC?
1. Revisiting and reviewing earlier legal precedents establishing common law/case law precedents
2. Making ultra vires rulings where the Court judges public bodies have acted beyond their statutory authority
3. Issuing declarations of incompatibility with HRA
77
Why did the UKSC feel it had the authority to do the prorogation ruling?
It is a precedential case
78
What is the main argument against the idea that judges are becoming 'politicians on a bench'?
They always have been! It's their job to check the legality of actions with existing legislation and hence reverse or force decisions.
79
What do some people think the court should be elected to reduce the effect of 'politicians on a bench'? What is the response to this?
That's the dumbest thing I've ever heard.
## Footnote
Judicial independence is threatened by an elected judiciary. It is nearly unheard of and would inevitably politicise the judiciary
80
How has the UKSC taken greater authority?
The separation of powers, increased public presence and more transparent appointment process make the court feel legitimate enough to make rulings
81
What are the 3 Weber types of authority?
POWER is the ABILITY to do something, AUTHORITY is the RIGHT to
1. Charismatic - leader's personal qualities
2. Traditional - established traditions and customs
3. Legal-rational - granted as result of a formal process
82
Does SCOTUS arguably have a greater status just because of the constitution?
No - judicial review was discovered
## Footnote
A similar move could occur in the UK
83
What does 'Judiciary' mean?
All judges in the UK
84
What is the only way the UKSC can make new law?
Common law from judicial review
85
What is the maximum retirement age for judges?
70
86
What kind of legislation can the UKSC overturn?
Secondary legislation (SIs) but not primary legislation
87
What is an example of an ultra vires ruling?
2016 - Chris Grayling was ultra vires for introducing a residence test to the Legal Aid Act 2012
88
What are the positions on the UKSC?
President
Vice President
10 Justices
89
What are the UKSC justice term limits and when were they introduced?
They must retire at 70 if appointed after 1995 (decided by a 1993 Judicial Pensions and Retirement Act)
90
Why is the UKSC's power of judicial review limited?
Can only overturn secondary legislation and can only declare primary legislation incompatible with Acts of Parliament
91
What was Chris Grayling's action in 2016 regarding the Legal Aid Act 2012?
Chris Grayling was ultra vires for introducing a residence test to the Legal Aid Act 2012.
92
What are the positions on the UK Supreme Court (UKSC)?
President, Vice President, and 10 Justices.
93
What are the UKSC justice term limits and when were they introduced?
They must retire at 70 if appointed after 1995, as decided by the 1993 Judicial Pensions and Retirement Act.
94
Why is the UKSC's power of judicial review limited?
The UKSC can only overturn secondary legislation and declare primary legislation incompatible with Acts of Parliament.
95
Where does it say that the UKSC can strike down secondary legislation?
Erskine May.
96
What is the power of the UKSC to strike down secondary legislation and issue declarations of incompatibility called?
Judicial review.
97
What other laws can the UKSC strike down?
Laws which violate EU law (since Factortame).
98
What is an example of a declaration of incompatibility being issued due to the ECHR?
In June 2018, the 2004 Civil Partnerships Act was declared incompatible because homosexual couples could have a civil partnership or marry, but heterosexual couples could not. The law was revised in 2019.
99
What is an example of the UKSC making a ruling based on existing parliamentary law?
In 2015, the UKSC upheld a request to publish Prince Charles' letters to government ministers under the 2000 Freedom of Information Act.
100
Why is there vagueness in the extent of the power of the UKSC?
The court sets its own limits over judicial review powers, reminiscent of the September 2019 Brexit ruling and the 1803 Marbury v Madison case.
101
Where is the UKSC located?
Middlesex Guildhall.
102
How does the UKSC set precedent?
Through case law rulings.
103
What is one similarity in the lower judicial system between the UK and the US?
In the UK, the justice system is devolved and different among the different countries, while in the US, each state has its own courts, organized into 'circuits'.
104
How does the UK legal system work fundamentally?
It is based on common law and case law, placing the UKSC in a high position.
105
How were judges appointed before the Constitutional Reform Act (CRA)?
The Lord Chancellor alone made the call, after consorting with colleagues and the Prime Minister, with the monarch then approving.
106
To what extent has the Judicial Appointments Commission (JAC) been a failure?
It is still ultimately the call of the Lord Chancellor, and Oxbridge predominance suggests progress has not been sufficient.
107
How do you get on to the UKSC?
Not via the JAC! A five-member selection committee makes the selection, which goes to the Lord Chancellor, who can reject, ask to reconsider, or approve.
108
What is a 'qualified practitioner'?
A senior courts qualification, advocate in Scotland, or a member of the Bar of Northern Ireland.
109
How can MPs overturn any legal precedent?
By passing an Act of Parliament.
110
Where are UKSC justices expected to explain their judgments?
The UKSC website publishes full rulings.
111
Is it true to say that the wider judiciary is unrepresentative and therefore the UKSC isn't the problem?
No, the UKSC does have a problem; the majority of magistrates are women (56%), but magistrates from ethnic minorities are underrepresented (12% versus 18%).
112
Is conflict between senior judges and politicians necessarily a sign of the court acting too politically?
No, it could indicate judicial independence, as judges are more ready to take on the Government.
113
What is another reason the UKSC is not particularly inclusive?
It is very expensive to get a case there; for example, in 2022, the Scottish Government spent £250,000 getting to the Court.
114
How much does even an application for permission to appeal cost in the UKSC?
£1390 - and that's just the beginning.
115
What is an example of a famous ruling that was essentially common law?
Gina Miller 2017, which established that an Act of Parliament is necessary to leave the EU, setting a new judicial precedent.
116
What key role does the UKSC have in devolution?
It can rule on the legality of some devolved powers.
117
What is an example of how the UK judiciary may not be completely politically impartial?
In 2010, R v Saibene and Others, the presiding judge criticized the situation in Gaza, calling it "hell on Earth". This lead to criticism from the Office for Judicial Complaints. However, the suspects were acquitted of criminal damage in the meantime.
In 1979, the acquittal of Jeremy Thorpe had a highly unusual summing up, where the judge called Thorpe, on trial for conspiracy to murder, "a national figure with a very distinguished record". The trial and acquittal was famously satirised by Peter Cook.
118
Who monitors judicial impartiality in the UK?
The Law Society and the Office for Judicial Complaints.
119
What are two ways judicial impartiality is threatened?
1. Unrepresentative makeup of the judiciary. 2. Politicisation.
120
How is the Human Rights Act (HRA) different from other laws regarding politicisation?
Politicians are forced to rule on the merit of law, rather than the content.
121
What did Factortame specifically do?
It allowed the UKSC to suspend Acts of Parliament suspected of contravening EU law.
122
When did the Treaty of Rome enter UK law and what effect did it have?
In 1972 with the European Communities Act, which gave existing UK statute inferiority to EU law.
123
What did Treaty of Rome incompatibility mean and when did this change?
From 1972-1990, it meant the government could be held to account at the European Court of Justice. After Factortame, it meant the UKSC could suspend UK laws.
124
What did Factortame do?
It gave UK courts the ability to suspend statute law until the ECJ was able to give a final judgment.
125
Why do some say the ECHR has gone too far?
It is being stretched beyond its original remit in some cases, such as Akyargo and Ikuga v UK.
126
What is derogation and how does it illustrate that rights are never really safe?
Derogation allows rights to be suspended. The HRA can be suspended, and ECHR Article 15 states that during emergencies, certain articles may be suspended.
127
How is pre-legislative scrutiny in place to ensure legislation is compatible with the HRA?
The Joint Committee on Human Rights in Parliament conducts this scrutiny.
128
What 1992 development may have politicised the judiciary and why?
The 1992 Maastricht Treaty brought far more EU laws under consideration, increasing the prominence of Factortame.
129
Why is some of the newfound power of the judiciary hard to perceive?
It happens in pre-legislative scrutiny, such as with the Immigration and Asylum Act 1999, which required checks for HRA compatibility.
130
Who does the HRA compatibility check?
It is the responsibility of the relevant minister of the crown, but the Joint Committee on Human Rights may pull a bill aside for further evaluation.
131
How did Brexit weaken the status of the UKSC?
The UKSC can no longer overturn UK law for EU law, as it is now all UK law.
132
Who runs the European Court of Human Rights (ECtHR)?
The Council of Europe.
133
Why is the EU not the problem regarding the ECHR?
The Council of Europe sets the ECHR.
134
What status did Vernon Bogdanor believe EU courts had pre-Brexit?
"Constitutional courts that enforce EU law." After Brexit, the UKSC is emboldened.
135
Why is the UKSC's recent post-Brexit 'politicisation' potentially overblown?
The UKSC is filling the gap left by the ECJ and continuing its role established by Factortame.
136
Why was the prorogation ruling significant?
It was significant because it overruled the royal prerogative power to prorogue Parliament.
137
Why could Marbury v Madison come to the UK?
Rulings on what is 'justiciable' are made by the UKSC, as seen in the prorogation ruling.
138
What basis did the Court use for its prorogation ruling?
It referenced many ancient cases, such as the 1611 Case of Proclamations.
139
What is the counterpoint to the argument that an uncodified constitution prevents judicial overreach?
It sets no powers, and therefore also sets no limits to discovered powers.
140
What is an example of a common law case?
R v Horncastle and others 2009, which allowed hearsay evidence to be used as a basis for conviction.
141
Will the UKSC now start striking down legislation?
No, the prorogation ruling was significant but it was nonetheless common law, as stated by Vernon Bogdanor.
142
What evidence shows that 'politicians on a bench' was not a new problem?
The UKSC has always had common law powers and 'QUASI-LEGISLATIVE' power.
143
Why are Weber's three sources of authority useful?
They can be used as a framework for analyzing many institutions.
144
What mistake must be avoided when comparing the UK and the US judiciary?
Do not become fixated on Article 3, as it only outlines processes and structures; the court discovered its own power in 1803 Marbury v Madison.
145
What is the fundamental judicial principle in the UK?
The rule of law.
146
What does 'sub judice' mean?
Under judicial consideration - prohibited from public discussion elsewhere.
147
How is neutrality important to the Court's authority?
Neutrality gives the court legitimacy, but careless attacks by the right are undermining its authority.
148
What is an example of judicial impartiality?
In 2006, 9 Afghan men who hijacked an airliner were protected from deportation due to ECHR rights, despite condemnation from both Blair and Cameron.
149
What is case law?
It is the same as common law.
150
What is an example of case law that may be judicially active?
Super-injunctions.
151
Who can violate sub judice?
Parliamentarians, due to Parliamentary Privilege.
152
What is an example of how the UKSC used EU law to uphold rights?
In 2011, the UKSC ruled that gender premium car insurance was illegal.
153
What is an example of how the court system applies UK law?
The Assisted Dying Bill 2024 will require High Court certification.
154
What additional power does the UK judicial system have that many justice systems do not?
Full discretion over sentencing, as set by the 2003 Criminal Justice Act.
155
What can justices do in the political scene?
They can chair inquiries, such as the Macpherson 1999 inquiry into the murder of Stephen Lawrence.
156
What major law is still on the statute books that arguably violates the ECHR?
The Regulation of Investigatory Powers Act 2000.
157
What example shows that the government, even when violating the ECHR, has an electoral check?
The Safety of Rwanda Act.
158
How often has the ECtHR ruled that the UK must give prisoners the right to vote?
Four times between 2009 and 2015, showing that the UK does not care.
159
What does the Lords sometimes see itself as?
"The watchdog of the Constitution," indicating that the judiciary needs buttressing.
160
Evidence the UKSC's diversity is improving (2025)
1. Lord Reed, current Chief Justice, has publicly expressed how he wants a BAME justice by 2026
2. Implementing a Judicial Diversity and Inclusion Strategy, working with Black Talent Charter and Bridging the Bar
161
2 evidences which show that UKSC unrepresentativeness is odd?
1. 11% of judiciary EM as of 2023
2. More than half of magistrates are women
162
Why are the Miller cases common law?
The court ruled on the common law principle of parliamentary sovereignty
