Judiciary Flashcards
(10 cards)
Explain and analyse three reasons why the UK Supreme Court was established. p108 and your notes.
P – Concern with the separation of powers
E - These were permanent professional judges who were made members of the House of Lords, though convention meant they rarely voted or spoke, there was still concern over influence behind the scenes. The act created a clearer physical separation between the judiciary and the government, by relocating the Supreme Court to Middlesex Guildhall
P – Concerns over the joint role of the Lord Chancellor
E - Lord Chancellor had a role in all three branches of the Government as: The Speaker of the House of Lords (Legislature) A member of the Cabinet (Executive) The Head of the Judiciary (Judiciary) However, after the reform the role of Head of the Judiciary was given to the Lord Chief Justice and the Speaker of the House of Lords was created as a separate office.
P – Criticism of the appointment of senior members of the judiciary
E - Appointments to all positions in the senior judiciary were once made by the monarch, on the advice of the prime minister and the Lord Chancellor. The Constitutional Reform Act 2005 reduced the power of the Lord Chancellor, placing most senior judicial appointments into the hands of a new, independent Judicial Appointments Commission (JAC)
Explain and analyse three functions performed by the UK Supreme Court. P109 and your notes.
P - Act as the final court of appeal in England, Wales and Northern Ireland
E – It is the highest Court in the UK. Appeals from the Court of Appeal and in exceptional circumstances, the high court are heard here. For example, Lee vs Ashers Bakers Baking Company was brought from Belfast County Court and the Northern Ireland Court of Appeal whose judgements were overturned. The courts voted unanimously in support of the cake makers, specifically they ruled that the owners of the bakery had the right to refuse to make a cake with the slogan “support gay marriage” as this would have amounted to forced speech.
P – Declerations of incompatibility
E – Ensuring government doesn’t overstep it’s powers and assert the rights of citizens. Citizens may feel they have been mistreated by a public body. Purpose is to establish the wrongdoing and may involve compensation or the reversal of a decision. Reille Vs Secretary of state for work and pensions.
A – Rulings not binding. he supreme court ruled the Rwanda Bill incompatible with the Human Rights Act due to concerns that it would mean sending asylum seekers back to unsafe countries. However, the Conservatives undermined the Supreme Court’s ruling by simply passing retrospective legislation declaring Rwanda to be a safe country, legalising their earlier actions. The Conservatives then put the scheme on their manifesto, intending it to be passed through the Salisbury convention. This demonstrates how the Court’s rulings can be undermined by parliament and are not binding.
P – Declaring executive actions ultravires
E - Proroguing parliament.
Explain and analyse three key principles that underpin the Supreme Court’s work. p109 and your notes.
P – Rule of law
E - No one can be punished without a trial, no one is above the law and all are subject to the same justice, the decisions of judges have a role to play in defining the UK constitution through common law.
P – Judicial independence
P – Not subject to external control and the ability to dispense justice properly without fear of the consequences. This is ensured through various measures such as the security of tenure and a growing separation of powers
P – Judicial impartiality
E – Judges operate without personal bias. This is achieved through high level training, keeping political views private and giving legal justifications for their judgements.
Explain and analyse three features of the UK system which support judicial independence. p110
P – Security of Tenure and guaranteed salaries
E – Cannot be threatened by politicians and remain independent of the political sphere. This is because their jobs and pay is secure and unable to be manipulated. Apply justice properly
P – Contempt of court
E – Public and media prevented from speaking out publicly during a legal proceeding. This is to ensure they are free from pressure and control.
P – Independent appointments system.
E – Requires training and experience so are unlikely to compromise professional identity. Also, JACs ensure judges are selected not based on political stance ensuring they remain independent of politics. Used to be chosen by Lord Chancellor and sit in the HofL.
Explain and analyse three threats to judicial impartiality. p111
P – Drawn into political conflicts
E –Inclination for judges to sway into politically territory despite being unelected. R v The Prime Minister (2019). In 2019, Johnson attempted to prorogue parliament in order to prevent them voting against his plan to exit the European union. The Supreme Court ruled that he could not do this, he could only use it in respect with parliamentary conventions so as to not prevent “the ability of parliament to carry out it’s constitutional function”. The Sun argued that delaying the passing of Brexit, a manifesto promise made them “enemies of the people”. Increased conflict increases threat of impartiality.
P – Demographic of the judges
E – 1% of the UK attended Oxbridge but 92% of Supreme Court judges did. 14% of the UK population is ethnic minorities but none of the judges are. 7% population attended a private secondary school in comparison to 75% judges. Life experiences different making it harder for them to be impartial
P – Senior judges have made recommendations to government and spoken publicly about their political opinions
E –. Lord Woolf spoke out against some of the provisions of the Constitutional Reform Act
Explain and analyse three reasons why the UK judiciary has become more politicised in recent years. p112 and your notes
P - HRA has drawn politicians into the political sphere.
E – It requires them to rule of the “merit” of individual pieced of statute law as opposed to their application. For example, declaring that the freezing of assets of terrorist suspects was unlawful. Subjected to scrutiny from the media and politicians since the creation of the supreme Court
P – Creation of the Supreme Court has brought judges under political and media scrutiny
E – 2017 MP David Davies criticised the Supreme courts rulings that MPs should have a say before triggering article 60.
A – Security of tenure ensures they are able to maintain integrity.
P – Senior judges have made recommendations to government and spoken publicly about their political opinions
E –Woolf spoke out against some of the provisions of the Constitutional Reform Act
P – Drawn into political conflicts
E Inclination for judges to sway into politically territory despite being unelected. R v The Prime Minister (2019) In 2019, Johnson attempted to prorogue parliament in order to prevent them voting against his plan to exit the European union. The Supreme Court ruled that he could not do this, he could only use it in respect with parliamentary conventions so as to not prevent “the ability of parliament to carry out it’s constitutional function”. The Sun argued that delaying the passing of Brexit, a manifesto promise made them “enemies of the people”. Increased conflict increases threat of impartiality.
P – Devolution as they now must rule on which powers are reserved to Westminster.
E – In 2018 the Supreme Court ruled that the Scottish Parliament had gone beyond the powers given to it in the 1998 Scotland Act specifically the Scottish Parliament had passed the UK withdrawal from EU bill which embedded some laws from the European Union into Scottish law judging that only Westminster could rule on this area. Further, in 2022, the Supreme Court ruled unanimously that the Scottish parliament cannot unilaterally legislate to hold a referendum on Scottish independence
Explain and analyse three reasons why the UK judiciary has not become more politicised in recent years. p112 and your notes.
P – The creation of the JAC reduced the role of the Lord Chancellor.
E – Enhanced transparency and addressed concerns about political interference. Requires at least 15 years of experience and unlikely to give up professional reputation to make political decisions
P – Increased use of judicial review indicates a successful separation of powers
E – Suggests the courts are challenging the government when it appears to be encroaching on civil liberties.
P - Judges benefit from fixed salaries and security of tenure.
E - Gives them a degree of insulation as they can remain impartial and not influenced by critical politicians and know their job is still secure. Cannot be threatened by politicians.
Explain and analyse three ways in which the power of the judiciary has increased in recent years. p113-121 (including the debate box on p116).
P – Human Rights Act allows senior judges to rule on the “merit” of statute law and make declarations of incompatibility
E – Incorporated the ECHR into UK law allowing UK citizens to pursue cases of ECHR in the country. Judiciary provides a check on the government to make sure it does not act Ultra Vires. For example, whole life sentences deemed to be a breach of Article 3 which prohibits torture in 2013.
P – Constitutional Reform Act 2005
E – Enhanced judicial independence and given them the opportunity to rule on cases without pressure from politicians due to security of tenure and separation of powers.
P – Growth of judicial activism
E – In 2022 there were 2,400 judicial review cases. Courts are adequately challenging the judges.
P – Devolution means they now vote on which powers belong to Westminster and the Scottish parliament.
Explain and analyse three ways in which the power of the judiciary has not increased in recent years. p113-121 (including the debate box on p116).
P – Brexit and an inability to declare laws incompatible with European law
E – Under the European communities Act, the UK incorporated the treaty of Rome into UK law and the Factortame Case set the precedent that UK courts can suspend statutes in conflict with EU law but are no longer able to do this
A – Enhanced powers as it removed a Court higher that the supreme court and made statute law supreme again.
P – No legal obligation to follow the recommendations of the Court
E – Word of the Court is not final and parliament is still sovereign. They can also pass retrospective legislation to make their action lawful. Such happened when government passed legislation to legitimise their actions after Rwanda ruling
P – Despite the Constitutional reform act increasing impartiality, it did little to increase the powers of the judiciary
E – The relationship between the judiciary, the executive and the legislature remains the same in the constitution.
Explain and analyse three criticisms of the composition of the judiciary. (textbook)
P – Threatens judicial impartiality
E- Life experiences so different from those that are brought before them. 1% of the UK attended Oxbridge but 92% of Supreme Court judges did. 7% population attended a private secondary school in comparison to 75% judges.
P – The appointments process seems to be somewhat favouring of males
E – 17% of Supreme Court Justices are female versus 51% population
A – Not the same in the wider judiciary. In 2021, 56% were female.
P – Culturally unrepresentative
E - 14% of the UK population is ethnic minorities but none of the judges are. Hard for people to trust or identify with the judges. Create a sense of apathy in the legal system.
