Judiciary

repeater

ugh

in theory v in practice (independence and neutrality argument)

in theory: judiciary is independent and neutral / in practice: judiciary has become more involved in political matters (e.g.: Brexit and Rwanda Bill)

judiciary - establishment (originally, CRA, own building)

originally comprised of 12 Law Lords, part of the HofL / Constitutional Reform Act 2005 - SC replaced the law lords (greater independence, separation of powers, appointed by the JAC) / 2009 - gained their own building

functions of the Supreme Court

judicial review - they scrutinise and check govt. actions / creating case law from the rule of precedence / acting as the final court of appeal

judiciary’s political role - dispensing justice

maintains and implements the rule of law / Shamima Begam case - Jacob Reese Mogg claimed that she shouldn’t be deported to Bangladesh, a country she has no connection to (govt. made her stateless)

judiciary’s political role - interpretation

interprets the meaning of law where there is conflict

judiciary’s political role - creating case law

how existing laws are applied to a particular case, establishes a rule of precedence / , e.g.: R v White, established the precedence of attempted murder

judiciary’s political role - declaring common law (what they are)

common laws are traditions that have developed over time, like a legal convention/ e.g.: common law marriage - a long-term partner counts as a spouse in wills, if you pay for something you are entitled to that

judiciary’s political role - judicial review

citizens can appeal against the govt to assert their rights / e.g.: Gina Miller case, Cherry/Miller case

judiciary’s political role - public inquiries (Hillsborough)

into matters of widespread concern / e.g.: Hillsborough Inquiry in the last 5 years (public inquiry found the police to be at fault for the deaths of 97 Liverpool fans in the 80s)

judiciary’s political role - external jurisdiction (constrains, Rwanda Bill)

constrains by legal systems of the EU and devolved powers / e.g.: found the Rwanda Bill to be unlawful since it contravenes with the ECHR

judiciary’s political role - sentencing issues

no set laws on sentencing lengths for crimes / judiciary decides on appropriate punishments

are they representative? (largely unrepresentative - % of women + POC, pale, male, and style / why more representation is needed)

largely unrepresentative - only 35% were female and 11% were POC in 2024, overwhelmingly male, Caucasian and elderly / more representation needed to promote equality and to provide different perspectives

judicial appointments

2005 CRA - appointed by the JAC based on merit, positions are for life so there’s few vacancies, made the SC a meritocracy

ECHR (established, put into British law, precedence, Parl. Sov., judicial review)

established in 1953, wasn’t put into British law until 2000, precedence over UK law, undermines parliamentary sovereignty, increases judicial review

Human Rights Act 1998 (almost codified, but times of emergency)

almost codified - only law that the govt. can be held accountable to, all other laws must be compatible with it / doesn’t need to be followed during times of emergency (pandemic, anti-terrorism act 2001, control orders)

erosion of human rights (CT protesting acts / Rwanda / Terrorism + discrimination, privacy)

2022 Policing Act, 2023 Public Order Act / Rwanda Act 2024 / Terrorism Act, April 2025 - could increase discrimination and infringement of personal privacy

examples of the HRA defending individual rights in the UK (Abu Qatada, Rwanda, Public Order Act, child’s right to British Citizenship vs Home Secretary, Trade Union Act)

2012 - Abu Qatada case (prevented from deportation) / 2023 Rwanda Case / May 24 - High Court found the Public Order Act to be unlawful / Feb 25 - SC protected a child’s right to British Citizenship according to the ECHR, found Home Secretary to have acted unlawfully / April 25 - SC found the Trade Union Act to be incompatible with the ECHR

doctrine of ultra vires

judiciary can condemn govt. actions when they act ultra vires (beyond their authorised power) / e.g.: May tried to trigger Article 50, BJ tried to prorogue Parliament

Woolmington v DPP

innocent until proven guilty

GCHQ case

Thatcher wouldn’t allow GHCQ employees to join trade unions - SC ruled that prerogative powers could be scrutinised, but national security matters are up to govt.

gillick competence case

if you’re under 16 and found to be gillick competent, then you can consent to your own medical care (gillick wanted contraceptive pills)

Factortame case

found that the UK couldn’t stop EU nations from fishing in their waters - EU law took precedent over UK law

R v R

found marital rape to be illegal

Spanner case

group of men were convicted of malicious wounding at a BDSM party - SC found you couldn’t consent to grievous body harm

Belmarsh case

govt. couldn’t hold suspected terrorists indefinitely without trial - found the 2001 anti-terrorism act to be incompatible with the ECHR

R v Chaytor

MPs expenses - parliamentary privilege doesn’t exempt you from criminal charges

Bull v Hall

gay couple refused service at a BnB (innkeepers were religious) - SC ruled you couldn’t use your protected characteristic to discriminate against another

Gina Miller case

May couldn’t use her prerogative powers to trigger Article 50 without permission from parliament - parl. sov.

Cherry/Miller case

BJ couldn’t prorogue parliament since it inhibited it from functioning without any justification - power of prorogation subject to judicial review

Zimbabwe case

couldn’t deport a man from Zimbabwe because he had HIV - his life would be dramatically shortened without NHS HIV care

Uber v Aslam

uber drivers now under the Employment Rights Act 1996, now entitled to the right to minimum wage and paid leave

Safety of Rwanda case

Rwanda declared to be unsafe, govt. couldn’t hold migrants there

ECHR + HRA on judicial activism / Cameron and Hague’s critiques (shifts powers)

ECHR and HRA greatly increased judicial activism - more power to hold govt. to account / Cameron and Hague critique it saying it shifts power from elected politicians to unelected judges

judicial independence and neutrality conclusion argument

independence is needed for judicial neutrality - but judicial independence doesn’t guarantee neutrality

6 pillars of judicial independence - security of tenure + guaranteed salaries from the Consolidated Fund

tenure: open-ended term, politicians can’t influence them by threatening to sack/sue them / salaries: politicians can’t manipulate judges salaries

6 pillars of judicial independence - offence of contempt of court

sub judice rules: ministers, media, and other individuals can’t speak out publicly during legal proceedings / Brianna Ghey case - can’t be named when you’re under 18, their names were exposed

6 pillars of judicial independence - separation of powers (CRA, own building, DESPITE - UC)

CRA 2005 - law lords became the SC = greater independence / gained their own building in 2009 / DESPITE separation of powers, the judiciary are subject to parl. sov. due to our UC

6 pillars of judicial independence - independent appointments system

appointed by JAC - transparency, appointed on merit, politicians can’t choose the Justices (compared to the USA)

6 pillars of judicial independence - training and experience of senior judges

judicial integrity - unlikely to defer to politicians/public opinion since they’re experts, won’t compromise their careers

judicial review definition

when judges scrutinise laws to ensure that it’s compatible with existing legislation - SC can only declare laws incompatible, not unconstitutional

neutrality - anonymity + media threat

protects Justices from being swayed by public opinion / threatened by the rise of media attention 2017 Daily Mail headlines: ‘dictators in wigs’ and ‘enemies of the people’

neutrality - restriction on political activity + justifying judgements

P - can only vote/be low members of PGs (e.g.: National Trust) / J - they must use the law to justify all judgements

neutrality - training + conflicts of interest

T - career surrounds the law, not politics / C - can’t judge cases involving people you know

neutrality overview (unrepresentative, increasingly controversial cases - trans women e.g., but neutral ≠ complying)

unrepresentative = out of touch / increasing controversial cases makes them look more politicised / e.g. April 25, SC defined ‘woman’ in the EA 2010 to be a biological female, trans women no longer have the same legal protections / but being neutral does not mean complying with govt

judicial activism - Blair’s argument (good to add to an essay)

courts provide an essential check on over-powerful ministers and agents of the state

evaluate the view that the UK judiciary is both independent and neutral (essay structure - different)

intro / section 1 (independence) - yes + no paragraphs + mini-conclusion / section 2 (neutrality) - yes + no paragraphs + mini-conclusion / conclusion

FOR judiciary has authority over parl. - judicial activism (ultra vires - Public Order Act + Trade Union Law / judicial review - % increase / Miller I and II / CRA / quasi-legislative powers)

using the doctrine of ultra vires, judges can hold political actors to account (e.g.: Public Order Act, May 2024 + Trade Union Law April 25, SC found it to be incompatible with the ECHR (infringed right to assembly)) / judicial review - 70% increase in judicial review in 2011 / Gina Miller and Cherry/Miller case / CRA 2005 - greater independence, more likely for the SC to hold govt. to account / can establish common law, quasi-legislative powers

FOR judiciary has authority over parl. - HRA (widened judiciary’s ability to… + Trade Union case / persuasive authority / apply Rule of Law / hidden influence / almost codified)

widened judiciary’s ability to protect civil liberties and govts’ use of power (e.g.: April 25, SC found the Trade Union Act to be incompatible with the ECHR) / HRA has persuasive authority, entrenches individual rights / strengthened judiciary’s ability to apply the Rule of Law / hidden influence - all laws must be compatible when drafted / HRA is almost codified, parl. accountable (Belmarsh case)

FOR judiciary has authority over parl. - ECHR/EU (Factortame, British citizenship, SA vs Home Secretary (refugee status), Trade Union Act)

Factortame / Feb 25 - British citizenship vs Home Secretary case / March 25 - SA vs Home Secretary (UK must be conscious of ECHR regulations when removing refugee status from individuals) / April 25 - Trade Union Act incompatible

AGAINST judiciary has authority over parl. - parl. sov. (isn’t as far-reaching as in the US / Parl. Sov. - can’t declare laws unconstitutional / supremacy of statute law / Lord Philips on the CRA 2005 / Lord Neuberger on what the SC has done since)

judicial review in the UK isn’t as far-reaching as it is in the US / parl. sov. = SC only applies the law, can’t overturn laws and declare them ‘unconstitutional’ (uncodified constitution) / supremacy of statute law = case law is less powerful / Lord Philips 2005: change would be one of ‘form rather than substance’ / Lord Neuberger argues that the SC hasn’t done anything that different from the law lords

AGAINST judiciary has authority over parl. - HRA (still isn’t codified / CTs - Trojan Horse, BBR, Badenoch + ECHR, CTs + Border Security Bill / chose to pass HRA)

HRA still isn’t codified and can’t overturn Acts of Parliament / CTs view the HRA a a ‘Trojan Horse’ that allows the ECHR to take root in the UK - tried to replace the HRA with a BBR in 2022, Badenoch called to leave the ECHR Feb. 25, CTs proposed an amendment to the Border Security Bill to exclude the HRA from immigration decisions March 25 / govt. chose to pass the HRA and they can choose to not apply it/remove it (Safety of Rwanda Bill 2024)

AGAINST judiciary has authority over parl. - ECHR/EU (left the EU / Badenoch ECHR + CTs on the HRA and immigration policy / Reform success in 2024 + Runcorn and Helsby / no legal obligation / most areas of legislation still…)

left the EU - parl. regained sovereignty, judiciary has less means to hold govt. to account / Badenoch wants to leave the ECHR Feb 25 + CTs want to remove the HRA from immigration policy March 25 / Reform gained 14% of the vote in 2024, set to win the Runcorn and Helsby byelection May 25 / Parl. is under no legal obligation fall into line with court rulings, even if an Act of Parl. violates the ECHR / most areas of legislation still in the hands of Parl. (ECHR only about individual rights)

overall conclusion for: judiciary has authority over parl. (ultimately, just apply, powers Parl. granted / so if Parl. feels controlled / doesn’t control, contains)

ultimately, judges just apply the laws that are passed by parliament using the powers that parl. has granted them / so if parl. feels controlled by them, they can change the law / therefore, the judiciary doesn’t control parl. but rather contains it by ensuring that they act lawfully

what kind of power does the SC have?

quasi-legislative powers

Chris Packham/govt. climate plans case

May 2024 - High Court ruled that the govt. wasn’t doing enough to meet its climate targets, and so they’re required to redraft their climate plan

recent cases (Public Order Act, Horizon Scandal, sale of arms, women in the EA)

May 24 - High Court found the Public Order Act 2023 to be unlawful / SC quashed 74,000 fines from the Horizon Scandal 2024 / Feb 25 - High Court ruled that exportation of arms could be subject to judicial scrutiny (due to HRs considerations) / April 25 - SC ruled that ‘woman’ in the EA 2010 only refers to biological women, implications for trans rights