Relations between branches (SC) Flashcards
(45 cards)
SC judges Tenure
Life tenure but a retirement age of 70 or 75 (depending on when they were appointed)
Functions of the judiciary
- Interpret the law
- Assess evidence presented in court
- To be impartial in decision making
- To control how trials unfold
SC can
- Point out incompatibilities with existing legislation
- Can declare the govt. to be acting ultra vires (beyond its powers)
Miller I - case details
- triggering Article 50 of the Lisbon Treaty by govt using prerogative powers (rather than consulting Parliament)
- High court ruled in favour of Miller (Parliamentary side) - case went to SC
Miller I - court ruling
- Court ruled that if govt. acted without seeking Parliamentary approval it would be acting ultra vires
- Parliamentary sovereignty meant that only Parliament could take away the rights
Judicial Independence
Free from political interference. Provides security for justices as they know they can make rulings without having to fear this might impact their careers.
Apply the law in accordance with experience and training without allowing for third party influence
Supports the separation of powers
Judicial Neutrality
Fulfilling their roles without exercising any personal bias. This includes refusing to preside over any cases involving family, friends or professional associates.
No political sympathy or ideological preferences
Ultra vires
Judicial review
Review the actions of public bodies or public officials to determine whether or not they have acted in a manner that is lawful
- only 36% of judicial review cases in SC ruled against a public body
- number of judicial review cases
Rule of Law
The law applies to everyone equally
- no one is above the law
- equality before the law
- the law is always applied
- legal redress is avalible
SC establishment
Constitutional Reform Act 2005
Opened: 2009
Law Lords became SC justices “differentiation between those making the laws and those interpreting them”
“Cornerstone of our constitution” Lord Kerr
Has SC become more independent
Yes - removed from HoL, Separate building, Lord C veto is more limited
Miller II, Judicial Appointments Commission removes politics from appointments, limited special access of ministers
No - Lord Chancellor can still veto appointments, the role has not changed much, more decorative than effective,
Law Lords already rarely expressed political judgement else they were excluded from cases,
Security of tenure and income have been preserved but already existed
Has SC become more neutral
Yes - Created Judicial Appointments Commission ensures more checks on appointments, judiciary is better monitored and its distancing from the Lords has reduced association
No - Still abides by the “doctrine of precedent”, still 12 justices, risk that justices may not always declare conflicts of interest
Judicial appointments - GOOD
- Judicial Appointments Commission aimed to increase the neutrality of appointments
- Minimal qualification levels (15 years, 2 as judge)
3.Lord Chancellor no longer has unlimited vetos
Judicial appointments - BAD
- Descriptive representation is lacking
only 4% of senior judges are from ethnic minorities
only 26% are female - Judicial Appointment Commissions choosing based on ‘merit’
- Lord Chancellor still has limited veto power (political influence)
- Tie breaker Equality Act provision has never been utilised, never two candidates of equal merit
Miller II
- Unanimous ruling that Johnson advising the Queen to prorogue Parliament in the lead up to the Brexit deadline was ‘unlawful’
‘Judge-made law’
‘judge-made’ laws:
1. Clarification of statute law
2. ‘Case law’ through legal precedents
3. Creation and application of common law (when there is a lack of statute law and precedent)
How does the judiciary uphold the rule of law?
- Hear and decide cases
- Interpret and apply the law
- Power to create ‘common law’
- Determine sentences
- Where power lies between devolved administrations
- Judicial review
- Conduct public inquires
2016 - Chris Grayling
- Acted ultra vires
- Exceeded his powers in changing the rules so that legal aid claimants needed to pass residency tests to qualify for financial supports
- shows court emboldened to rule more frequently on government policy
The Criminal Justice and Courts Act 2015
- Introduced new fees
- reduced the number of judicial review cases (peak in 2014 15,000)
- stricter approach to determining standing
Judicial Review and Courts Act 2022
- Decisions of the upper tribunals are no longer eligible for judicial review
- Increased range of options, more limited remedies became available
Independent Review of Administrative Law in 2020
- Requested by the government
- Lord Faulks
Findings: Did not recommend any wholesale change to the judicial system
2018 Northern Ireland Abortion Law
- Incompatible with human rights laws in cases of rape, incest or fatal fetal abnormalities
- Eventually changes were made to the laws
How is judicial independence maintained?
- Security of tenure
- Guaranteed salary
- Contempt of Court as an offence (cannot comment on ongoing cases)
- Increased separation of powers (creation of the SC, Lord Chancellor veto restrictions and oath)
- Independent appointments system
Training and experience
