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 are the Criteria by which a minister etc can be said to be acting unlawfully?

-Illegality( Acting Ultra vires)

-Procedural Impropriety(when a public body or official fails to follow the correct legal procedures when making a decision)

- Irrationality( a decision which goes against accepted morals or logic)

What is an example of Illegality?

-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

-In this case Parliament passed the Terrorist Asset-Freezing Act 2010 allowing them to freeze bank accounts which was passed without a vote even required in the Lords , clearly indicating that parliament wanted to quickly amend the law

What is an example of Procedural Impropriety?

-R vs Secretary of State for Transport 2024

-The High Court quashed(overturned) the Government’s decision to refuse support for Birmingham City Council’s revised highway proposal

-The court found procedural unfairness because the Government changed its assessment criteria late in the process and did not inform the Council or give it an opportunity to respond to the new concerns

What is an example of irrationality?

-R vs Secretary of State for Environmental affairs 2003

-As part of the Fur Farming Prohibition Act the government set up a compensation scheme which paid farmers who would suffer from the fur ban

-But this was only for farmers breeding males not females, hence the court agreed with its irrationality as breeding requires both males and females

So what happens once a court has decided the executive acted unlawfully?

What has to be noted?

-Issue a quashing order( cancelling the gov’s decision)

-A prohibiting order(Forbidding the authority to act beyond its powers)

-Or declaration to clear up what the act said

-The government can only criticise executive actions but not the acts of parliament themselves due to parliamentary sovereignty

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.

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 2006 the Government of Wales Act 2006 devolved the organisation and funding of the national health service to the Welsh Assembly

-In 2015 with Welsh Assembly used this to pass the Recovery of Medical Costs for Asbestos Treatment Bill which made employers liable for the costs of medical treatment for those suffering from certain industrial diseases

-The supreme court ruled that the bill was beyond the Welsh Assembly’s power to manage the organisation of funding of the NHS.

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

-Case of Rwanda 2024

-Mohammed Jabar Ahmed vs Treasury

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?

Mohammed Jabar Ahmed vs Treasury

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

-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

-John 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 European court of Human rights ruled in Hirst’s favour, stating that the blanket ban on prisoner voting was disproportionate and violated the ECHR.

-Tensions continued until 2017 when the Temporary license to vote was made

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

-Appointment process

-Changed role of the lord Chancellor

-Judicial impartiality/ MP restraint

-What is the new role of the lord chancellor?

What is the counter to the new role of the Lord Chancellor maintaining independence?

-Already know

In 2015 Gove, a Cabinet minister and MP, was criticised by judges and legal bodies because he was a political figure overseeing judicial matters, including the approval of appointments and court reforms.

-How many times has the Lord chancellor rejected proposals put forward by the JAC?

-How many people are on the JAC?

-5 times of 3500 from 2006-2013

-2 professional members , 5 judges and 5 lay members

What is the counter?

Give an example?

-Lack of representation in the Supreme Court can undermine the credibility of the Judicial Appointments Commission (JAC) because it raises doubts about whether appointments are genuinely independent and impartial.

-In 2009 there were 11 male justices and only 1 female justice ( Lady Hale) on the supreme court and even with her becoming the first president of the supreme court in 2017, only 28/99 high court judges are women

What is the final way judicial independence is upheld?

Judges are completely immune from being sued or prosecuted for their work and conventions in parliament limit what MP’s can say about trials

Give an example

-In July 2025, Robert Jenrick (Shadow Justice Secretary) posted on X about an ongoing murder trial while it was in progress. The post expressed strong political views, including blaming corruption .

-Both prosecution and defence raised the issue in court because the comments could influence the jury’s view

-The court took steps to remove the post and ensure it did not prejudice the trial, and senior figures (including the Justice Secretary) publicly warned that politicians must not risk prejudicing trials

What is the counter?

Example?

-Media coverage or political rhetoric can create an environment where judges feel subtle pressure, challenging true neutrality.

-In Miller vs Secretary of State for EU after the supreme court said the gov needed parliament permission to trigger Article 50 , Right-leaning newspapers, like The Daily Telegraph and The Sun, highlighted that the ruling delayed Brexit calling the 8 judges who denied the PM ‘enemies of the people’

What does politicised mean?

To be politicised means to be influenced by or perceived to be influenced by political interests, opinions, or pressures, rather than acting purely on neutral, impartial grounds.

What are the three ways the supreme court can be shown to be politicised?

-Appointment process

-Criticism by the media

-Judicial activism

What are three challenges to judicial independence in the UK?

-Political and media pressure on judges

-Composition of the supreme court

-Lack of impartiality

Give an example of clear ideological leanings as a judge?

-In 2013 Sir Paul Coleridge, a High Court judge, publicly criticised the UK government’s plans for same‑sex marriage, calling it a “shambles” and suggesting it was a “minority issue” during a time of wider social problems.

-After being formally warned by the chief justice he announced his early retirement from the High Court, stating he wanted to concentrate on his work with the Marriage Foundation