UK-JUDICIARY

What did the Supreme Court replace?

-The House of Lords as the highest court in England

What is the High Court made up of?

-Queen’s Bench Division

-The Family Division

-Chancery Division

How many justices hear appeals?

Usually 5 but there can be as many as 9

What do you need to be considered for appointment as a justice?

-You have to have held a high judicial office for 2 years

-Or you could have been a qualified practitioner for a period of 15 years

Who are judges selected by?

What happens with these selections?

-A 5 member selection commission under the authority of the Judicial Appointments Commission

-It gets submitted to the Lord chancellor who either rejects this (meaning they reconsider the selection) or they accept by notifying the PM

What is the last step?

The PM then recommends the candidate to the queen who confirms the appointment

What changed in 2005?

What is the purpose?

-The role of the judiciary via the Constitutional Reform Act 2005

-To increase judicial independence and accountability

What three reforms were made via the CRA 2005?

-Reform of the post Lord Chancellor position

-Independent Supreme court

-An independent Judicial Appointments Commission was made

Who is the Lord Chancellor?

Why did they remove his role as head of the judiciary?

-A senior government minister and member of cabinet

-To stop the merge between the executive and judiciary and keep the independence

What is the evidence?

-Following the 2005 reforms they removed the lord chancellor’s roles as head of the judiciary and speaker of the house of lords .

-Since 2006 these roles have been to the Chief Justice who is responsible for the training, guidance and deployment of judges and represents the views of the judiciary of England and Wales to parliament and ministers

What is the evidence for the creation of an independent supreme court?

-The UK Supreme Court was established in October 2009 under the CRA 2005, replacing the Appellate Committee of the House of Lords (Law Lords) which used to make supreme court decisions

-Justices now sit outside Parliament, physically and constitutionally, in Middlesex Guildhall.

What was the appointment process like before 2005?

-The lord chancellor had complete control

-There was little transparency with appointments made based on personal networks etc

What is the evidence for the change?

-An Independent JAC was created which was responsible for selecting candidates to recommend for judicial appointment to the secretary of State for Justice , based on merit

-The Lord chancellor can only reject a nomination once if the same candidate is proposed again they have to accept

What is judicial review in the UK?

-The idea that the judiciary reviews the decisions and actions of the executive and if they have been seen to be acting beyond their authority granted by law

-They are acting ‘Ultra Vires’

What was the power of the supreme court like prior to 1998?

-The willingness of the judiciary to utilise their powers was a lot more limited in scope.

-So the executive was not really checked by the judiciary as much

What are three reforms that have increases the power of the Supreme Court?

-The impact of the European Union

-HRA 1998

-Power over devolved assemblies

What does it mean by the impact of the EU?

-Via the 1972 European Communities Act ,all European laws have to be incorporated into UK domestic law

-This brought the idea that EU law did not need the approval of parliament and that it could replace any conflicting national laws

Give an example of this?

-Factortame Case

-Under the UK law ,Merchant Shipping Act, the rights of foreign owned ships to fish in water was restricted

-This was challenged by a company of Spanish fishermen in R vs Secretary of State for transport 1990 as it conflicted with EU law

-The law lords then decided to disapply the conflicting provisions of the Act

What is the counter?

Parliament retained the ultimate authority to repeal the ECA, which it later did via the European Union (Withdrawal) Act 2018, restoring full sovereignty.

What reform was made with the establishment of the HRA?

What is the weakness here?

-Section 3 of the HRA requires the judiciary to interpret legislation as far as possible in a way which is compatible with the rights in the ECHR

-They do this by inserting or removing certain words from the law or choosing the meaning of particular words

-But they cannot change the effect parliament intended the law to have

Give an example

-Ghaidan vs Godin Mendoza 2004

-A landlord tried to evict Godin Mendoza following the death of his male partner after 30 years, claiming he couldn’t inherit his protected tenancy as they were a heterosexual couple

-As in the Rent Act you could only inherit a tenancy by this

-The law lords held that the Rent Act must be interpreted to include same-sex partners under the HRA Section 3

What is the counter?

-Under the Human Rights Act 1998, even where courts find legislation incompatible with Convention rights, they cannot strike down Acts of Parliament; the strongest remedy is a declaration of incompatibility under section 4, which has no legal effect

Give an example of this

-A v Secretary of State for the Home Department (Belmarsh) 2004

-The House of Lords issued a declaration of incompatibility against the Anti-Terrorism Act 2001 which allowed indefinite detention without trial of foreign terror suspects as it breached Article 5 of the ECHR( right to liberty)

-Despite the ruling, the Act remained legally valid and enforceable until Parliament chose how to respond which they did with 2005 Prevention of terrorism Act with control orders instead of detentions

What powers does the judiciary have in terms of devolved assemblies?

-They get to decide whether laws passed by the devolved assemblies go beyond that granted by statute law

Give an example?

-IN 2025 THE COURT HELD THAT SEX , MAN AND WOMEN IN THE EQUALITY ACT 2010 WERE BIOLOGICAL SEX. THEREFORE,THE GENDER RECOGNITION ACT 2022 COULD NOT CHANGE SEX FOR EQUALITY PURPOSES AND SO THE SCOTTISH GOVERNMENTS GUIDANCE WAS UNLAWFUL.

‘THE JUDICIARY IS TOO POWERFUL TODAY’- WHAT PREMISES WOULD YOU USE FOR THIS?

-POWER OVER THE EXECUTIVE

-INCREASED WILLINGNESS TO INTERPRET LAW ESPECIALLY WHERE THEY HAVE NO PLACE.

What is the best example to show that the judiciary is too powerful in the UK via its limitation of the executive?

Miller vs Prime Minister 2019(Miller 2)

-Prime Minister Boris Johnson advised the Queen to prorogue (suspend) Parliament for five weeks in the run-up to the Brexit deadline which was said to prevent scrutiny over the Brexit deadlock

-The Supreme Court ruled unanimously that the prorogation was unlawful because it had the effect of frustrating or preventing Parliament from carrying out its constitutional functions without reasonable justification.

What is another example via its heavy willingness to intervene through judicial review?

Hirst vs UK 2005 in which Hirst, a prisoner serving a life sentence for manslaughter, challenged the UK law that banned all prisoners from voting, claiming it violated his rights under the European Convention on Human Rights (ECHR)—specifically Article 3 the court ruled in Hirst’s favour, stating that the blanket ban on prisoner voting was disproportionate and violated the ECHR.

What are good examples to show the limited control power of the judiciary

-Case of Rwanda 2024

-Mohammed Jabar vs Treasury 2010

What is the HM Treasury vs Ahmed 2010?

-Ahmed challenged the idea that parliament could freeze assets saying they didn’t have legal authority

-Supreme court ruled 7-0 that the freezing of bank accounts of individuals suspected of terrorism( Ahmed in this case) was ultra vires as the statute order did not expressly grant such a power

What is the counter?

-Due to parliamentary sovereignty parliament can pass law to bypass Supreme court verdicts

-AFTER THE HIRST VS UK RULING NOTHING CHANGED FOR MANY YEARS UNITL 2017 WHEN A MINOR CHANGE WAS MADE TO ALLOW PRISONER’S WITH A TEMPORARY LICENSE, TO VOTE.

Give an example of the judiciary protecting rights via law

-Tigere vs Secretary of State for Business, Innovation and Skills (2015)

-A young women Tigere from Zambia had her application for a student loan in the UK refused because she did not meet the government’s residency requirement for loans

-Tigere argued that this refusal was discriminatory and infringed her right to education under EU law .The Supreme Court unanimously agreed with Tigere, ruling that the blanket refusal of student loans in these circumstances was unjustifiable and disproportionate

What is the best example to show rights are not protected?

Rwanda Case 2024

WHAT IS THE BEST EXAMPLE TO SHOW THAT THE JUDICIARY IS TOO WILLING TO INTERVENE WHERE NOT REQUIRED?

IN MILLER 1 ( MILLER VS SEC OF STATE FOR EU) THE HIGH COURT WERE CALLED ENEMIES OF THE PEOPLE IN THE DAILY MAIL FOR NOT ALLOWING THE GOV TO TRIGGER ARTICLE 50 WITHOUT PARLIAMENTARY APPROVAL. WHEN TAKEN TO THE SUPREME COURT THE JUDGES WERE AGAINST PARLIAMENT AGAIN 8-3 DESPITE THE BREXIT REFERENDUM RESULT.

WHAT IS THE COUNTER?

WHAT IS THE COUNTER EXAMPLE?

-THERE IS JUDICIAL RESTRAINT

NICKLINSON VS MINSTRY OF JUSTICE 2014. IN WHICH NICKLINSON WANTED TO GET ASSISTED SUICIDE DUE TO HIS ILLNESS. BUT UNDER THE ECHR ARTICLE 8 HE COULD NOT , WHICH HE ARGUED BREACHED HIS RIGHT TO PRIVATE LIFE. THE COURT DECIDED TO DIFFER TO PARLIAMENT ON THIS MATTER DUE TO SENSITIVITY.

WHAT DOES JUDICIAL INDEPENDENCE MEAN?

WHAT DOES JUDICIAL NEUTRALITY MEAN?

-INDEPENDENCE MEANS THE JUDICIARY IS FREE FROM EXTERNAL OR OUTISDE INFLUENCE

-NEUTRALITY MEANS THE JUDGES DECIDE CASES WITHOUT BIAS OR PERSONAL PREFERENCE.

What are the three ways judicial independence/neutrality is upheld?

-Appointment process

-Changed role of the lord Chancellor

-Judicial impartiality

WHAT IS THE BEST EXAMPLE TO SHOW THE APPOINTMENT PROCESS LEADS TO A NEUTRAL JUDICIARY?

-LORD REED IN 2012 SPENT 13 YEARS IN THE SCOTTISH HIGH COURT AND BECAME A SUPREME COURT JUSTICE. MOREOVER LADY SIMLER STUDIED AT CAMBRIDGE UNIVERSITY.

WHAT IS THE BEST EXAMPLE TO SHOW THE APPOINTMENT PROCESS WILL NOT LEAD TO NEUTRAL RULINGS?

-LADY HALE’S DISSENT VS GRANATINO 2010 IN WHICH SHE SAID THAT THE HEAVY EMPHASIS ON PRE-NUPS BY THE COURT (8-1) WAS BECUASE THEY WERE MAJOIRTY MEN AND SO DIDN’T UNDERSTAND THE DISADVANTAGES TO WOMEN.

WHAT IS THE COUNTER TO THE IDEA THE LORD CHANCELLOR IS TOO POWERFUL?

-How many people are on the JAC?

HIS ROLE IS LARGELY CEREMONIOUS AND MAJORITY OF HIS POWER HAS BEEN SHIFTED.

-15 COMMISIONERS INCLUDING 7 JUDGES

WHAT IS THE ONLY EXAMPLE THAT IS POSSIBLE TO USE TO SHOW THE LORD CHANCELLOR STILL HAS SOME INLFUENCE?

IN 2022 DOMINIC RAAB THE FORMER LORD CHANCELLOR REJECTED PAY INCREASES OF 3.5% FOR JUDGES RECOMMENDED BY THE SENIOR SALARIES REVIEW BODY.

What is the final way judicial independence is upheld?

JUDICAL IMPARTIALITY

GIVE AN EXAMPLE

MILLER 1

What is the counter?

Example?

-LADY HALE’S DISSENT VS GRANATINO 2010 IN WHICH SHE SAID THAT THE HEAVY EMPHASIS ON PRE-NUPS BY THE COURT (8-1) WAS BECUASE THEY WERE MAJOIRTY MEN AND SO DIDN’T UNDERSTAND THE DISADVANTAGES TO WOMEN.

What does politicised mean?

WHEN THE JUDICIARY’S RULINGS AR INFLUENED BY POLITCAL PRESSURE , VIEWS AND INTERESTS.

‘THE SUPREME HAS NOW BECOME POLITICISED’ -WHAT PREMISIS WOULD I USE TO LOOK AT THIS?

-APPOINTMENT PROCESS

-JUDICIAL RULINGS ARE NOW SEEN AS HAVING HEAVY REPURCUSSIONS WHICH COULD BE SAID TO ENFORCE AN AGENDER RATHER THAN JUST ENFORCING THE LAW.

WHAT IS THE BEST EXAMPLE FOR THE APPOINTMENT PROCESS TO SHOW IT IS NOT POLITICISED?

LORD REED

WHAT IS THE COUNTER AND THE REBUTTAL?

ROLE OF LORD CHANCELLOR IN APPOINTMENTS AS HE CAN REJECT ONCE EVEN SO THIS HAS ONLY HAPPENED 5 TIMES OF 3500 FROM 2006 ONWARDS SO IT IS FALSE.

WHAT IS THE BEST EXAMPLE TO SHOW RULINGS ARE NOW POLITICAL?

MILLER 1 OR WOMEN VS SCOTTISH MINISTERS

WHAT WAS WOMEN VS SCOTTISH MINISTERS?

IN 2025 THE COURT HELD THAT SEX , MAN AND WOMEN IN THE EQUALITY ACT 2010 WERE BIOLOGICAL SEX. THEREFORE,THE GENDER RECOGNITION ACT 2022 COULD NOT CHANGE SEX FOR EQUALITY PURPOSES AND SO THE SCOTTISH GOVERNMENTS GUIDANCE WAS UNLAWFUL.

COUNTER?

NICKLINSON VS MINISTRY OF JUSTICE