SC, Executive and 🇪🇺

7 reasons the SC-Ex relationship has changed

1. Growth (and reduction in) judicial reviews

2. Increase in liberal ideology and rights culture

3. Introduction of the HRA

4. Increase in liberal-minded senior judges

5. Constitutional Reform Act 2005

6. Disagreements about sentencing

7. Disagreements about parole

Change in judges

• Judges no longer reluctant to challege state power and assert rights of citizens

2017 Miller Case

• Gina Miler Article 50 case ruled against the govt

• Ruling that employment tribunal fees of up to £1,200 unlawful and inconsistent with access to justice

  • Also contrary to Equality Act as disproportionately affected women

    • Ministry of Justice scrapped fees and refunded those who had already paid them

2019 Bedroom Tax

• Ruling of bedroom tax (housing benefit reduced by 14% for having a spare room) as unlawful as breach of right to a home under HRA

  • Full housing benefit restored to claimant and at least 155 partners of other disabled people

2020 change in proportion of civil judicial reviews won by claimant (🏴󠁧󠁢󠁥󠁮󠁧󠁿 and 🏴󠁧󠁢󠁷󠁬󠁳󠁿)

• Fell by 50%

2010-2019 — % of HR cases won by claimant

41%

UK Constitutional Law Association (2021 vs 2020)

• SC had ‘more of a tendency to reject human rights claims’ and to ‘side with public authorities’

2020 — number of civil JRs found for the claimaint

• 68

  • Lowest since 2001

2020 — % of cases that went to a final hearing were won by the claimant

26%

2021 — number of civil judicial reviews found for claimant

• 31

  • NEW low since 2001

2021 — % of cases that went to final hearing won by claimant

30% (3.3% overall)

2021 — proportion of HR cases successful

2/18

Boris Johnson

• Attempted to pass a law banning the courts from questioning the dissolution of parliament

• Reaction to SC’s ruling on the prorogation of Plmt

Sentencing disagreements

• Politicians feel judge’s sentences are too lenient — can review through ‘unduly lenient’ scheme

2 examples of unduly lenient scheme in use

1. Wayne Couzens

2. Fordingbridge Three

Parole

• Home Sec used to be able to ensure a prisoner stayed in prison for life

  • E.g. Myra Hindley

Sentencing Council

• Advises judges on how to sentence offenders in criminal cases

March 2025 Sentencing Council new guidelines

• Said criminal’s ethnic background should be taken into account when sentencing

  • Gov’t concerned and considering legislation to force changes to guidelines

2 examples of politicians saying things about the judiciary (oh dear)

1. Jenrick 2025 — called judges ‘activists’ and said they ‘blur the line between adjudication and activism’ and as a result gov’t ministers should have greater involvement in their appt

2. Starmer 2025 — said court decision to grant 🇵🇸 family right to remain in 🇬🇧 was ‘wrong’ at PMQs. Lady Carr, Chief Justice, said she was concerned

Important factor of 🇪🇺

• EEC law was deemed superior to national law

ECJ

• Would challenge 🇬🇧 laws and gov’t would need to respond if Britain was believed to have transgressed European Law, Direction and Regulations

Factortame Case

• Spanish fisherman complained that British law violated European law about registering if using fishing quotas

• UK High Court referred to ECJ but Law Lords said no UK court could overturn parliamentary statute

• ECJ said UK courts could suspend Acts of Parliament if they break 🇪🇺 law

Consequence of Factortame case

• Granted supremacy of 🇪🇺 law over 🇬🇧 law