the supreme court understanding

Unit 2.4.1

The judiciary is the branch of government that deals with the administration of justice. For example, the Courts system is part of the judicial branch.

The judiciary includes all courts in the UK, from local county courts all the way up to the UK Supreme Court. The term judiciary is also used as a wider term for all those who work within the courts and legal systems, from judges through to administrators in courts.

The supreme court sits at the top of the judiciary branch, which is split into two branches: the criminal division and civil division. the criminal division, in ascending order, is made up of the…

magistrates court, the crown court and the court of appeal. the civil divisioncourt, the court of appeal. the civil division , again in ascending order, is made up of the county courts, high court of justice and court of appeal

Until 2009 the highest court in the UK was the Appellate Committee of the of lords. This made the House of Lords …

 the highest judicial body in the United Kingdom.

the overall role of the UK judiciary is to interpret UK law, enforce UK law, to check …

the government is not acting ultra vires, to make sure external law is applied, to protect the rights of individuals and maintain judicial neutrality

In 1876 a Statute Law called the Appellate Jurisdiction Act made the House of Lords the highest court of appeal in United Kingdom. It was called the …

Appellate Committee of the House of Lords.It also set out the appointment of Lords of Appeal in Ordinary (commonly known as the ‘Law Lords’). These were permanent professional judges who were made members of the House of Lords so that they could sit within it as judges.

The fundamental problem with the existence of the judiciary within the House of Lords was that there were no separation powers. The highest judges in the country were also members of the legislature. They therefore …

 had a say over the laws which they would later have to enforce and adjudge in their judicial decisions.

Although Law Lords rarely voted or spoke in the chamber, there was no constitutional barrier to them doing so. In addition, there was also a logistical problem

The Law Lords took up valuable parliamentary space. There was an increasing consideration that constitutional reform needed to be made.

The constitutional reform act was passed in 2005. It made a number of changes to the judicial system in the UK as part of New Labour’s modernisation reforms:

the establishment of the supreme court, changing the role of the lord chancellor and the creatin of the judicial appointments commission

To address the problems created in the Appellate Committee of the House of Lords the Labour Government created the Supreme Court of the UK and placed it in new buildings in Middlesex Guildhall. The highest court in the land is now constitutionally and physically …

separated from the legislature. The Supreme Court is the final court of appeal in the UK for both civil and criminal cases. It also has the role of adjudicating disputes over devolved powers across the UK.  

Before the Constitutional Reform Act (2005) the position of Lord Chancellor was one of the most powerful in British politics. The Lord Chancellor was …

the Speaker of the House of Lords, the Head of the Judiciary and a Cabinet Minister. The Lord Chancellor therefore played an important role in all three branches of government. 

As part of the Constitutional Reform Act the Lord Chancellor lost his position as Speaker of the House of Lords, and in his place there is now a speaker elected by the House of Lords. In addition, the Lord Chief Justice replaced the Lord Chancellor as Head of the Judiciary. By convention,

it has now been established that the Justice Secretary shall hold the position of Lord Chancellor. This means that the Lord Chancellor can sit in the House of Commons.

However, the changes mean that the role of Lord Chancellor is now limited to ceremony and their power has been …

divided to other positions. This has achieved a far greater separation of powers in the UK political system

The last Lord Chancellor under the old system was Charlie Falconer. He had been Tony Blair’s flatmate at University and was an important advisor to him. Falconer himself, was a keen believer that the traditional powers of the position should be abolished.

The powers of Lord Chancellor fell to Jack Straw in 2007 in his role as Justice Secretary. It is currently Shabana Mahmood.

The first speaker of the house of lords elected under the new system was Baroness Hayman. The role is currently held by Lord McFall. The position is chosen via an election of members of the House of Lords and consists of 5 year terms, for which the speaker can only sit for a maximum of two. 

The role of speaker of the house of lords is far less important than that of the commons. This is mainly because the lords largely regulates itself and is far less adversarial in nature. The role of the speaker of the lords is far more procedural, rather than refereeing debates. 

The Senior Judiciary is made up of …

 the Justices of the Supreme Court and the senior judges of the Appeal Courts and High Court. 

Traditionally judicial appointments to the Senior Judiciary were made by the Lord Chancellor. He did this through consulting sitting judges and was under no obligation to appoint someone who had formally applied for the position. This secretive process was known as secret soundings. In 1994 this system was opened up, with …

 jobs being advertised and panel interviews taking place which included a Senior Judge as well as someone from outside the legal profession. This system lacked transparency and it was argued that it resulted in a lack of diversity in the senior judiciary, with few ethnic minorities and females represented. 

As part of the Constitutional Reform Act of 2005 the Lord Chancellor lost their traditional ability to make judicial appointments. A new Judicial Appointments Commission (JAC) was set up to …

 formalise the process of appointments to the judiciary

The Supreme Court was established as part of the CRA 2005 and was opened in 2009.  It is made up of 12 justices. 11 of the 12 law lords who had comprised the House of Lords Appellate Committee moved to the new building of Middlesex Guildhall which houses the UK Supreme Court. Although the Law Lords do still remain members of the House of Lords …

by convention they do not speak or vote on debates in the Chamber. They are now called Justices of the Supreme Court and there is a President of the Supreme Court (currently Lord Reed).

 the Lord chief justice must not be confused with the president of the supreme court. The lord chief justice is head of the judiciary but …

is based in the Royal Courts of Justice. The current Lord Chief Justice and Head of the Judiciary is Dame Sue Carr.  

The supreme court carried on four key roles that had previously been held by the Appellate Committee of the House of Lords:

• It acts as the final court of appeal in both Civil and Criminal Cases in England, Wales and Northern Ireland.

•  It hears appeals on issues of particular public importance. 

• It concentrates on cases of the greatest public and constitutional importance. 

• It maintains and develops the role of the highest court in the United Kingdom as a leader in the common law world. 

•  The Supreme Court has taken on the role of resolving legal disputes between the devolved governments of Northern Ireland, Scotland and Wales and the UK Parliament.

The first major time the Supreme Court decided upon an issue of devolution was Martin and Miller v. Lord Advocate, [2010]. This case occurred when it appeared that the Scottish Parliament had tried to legislate on reserved powers, those that were within the purview of the Westminster Government. The issue surrounded …

driving offences, which are legislated for by Westminster. However, the Scottish Parliament believed if these driving offences were ‘criminal’ in nature, they could have separate legislation as Scotland controls its own criminal law. The Supreme Court upheld the case of the Scottish Parliament that they were able to legislate on these issues. 

The process by which new appointments are made to the Supreme Court is similar to that of the JAC. however, there are some differences:

To be a Supreme Court Justice you must… 

• Have been a member of the senior judiciary for at least 2 years

• Been a qualified legal practitioner for at least 15 years

When a vacancy arises for the supreme court, applicants are interviewed by a specialist interview panel. It is made up of five members. 

The interview panel then notify the lord chancellor of their choice. The lord chancellor can then either accept, reject or require the panel to choose a different candidate.  Although this system suggests the Lord Chancellor still retains most power over the process …

it is expected that the Lord Chancellor will accept the recommendation of the Selection Commission.

the descriptive representation of the 33 justices of the Supreme Court is:

• 28 have been male (85%), and 5 female (15%)

• 27 are known to have been privately educated (82%) compared to 5 state educated (15%)

• 29 attended Oxbridge (88%) and 4 didn’t (12%)

 A judiciary that represents the diversity of modern British society may give a better sense of legitimacy to the judiciary. When citizens see themselves reflected in the make-up of the judiciary they are more likely to trust the decisions it reaches. however …

Choosing judges by taking into account descriptive representation may undermine the quality of judges. There is an argument that judges should be chosen based only on their expertise and qualifications rather than demographic considerations. 

 A more diverse judiciary can lead to better decision making. This is because a wider range of perspectives can be brought to judicial decisions. Judges may be better able to make decisions that represent the range of community issues in the UK. however …

There is an argument that judges chosen based on their background may not be able to make truly impartial decisions. Instead, judges should be selected on factors not linked to their background to avoid this. 

 Judges from diverse backgrounds are more likely to understand the challenges faced by marginalised communities in the UK. however …

 There is an argument that attempts to actively increase diversity actually undermine the overall goal. Instead, equality of opportunity should be focused on to allow all judges to be appointed based on ability, but with a more diverse representation being a natural follow-on to a more diverse Britain.  

The Supreme Court receives around 230 applications for hearings each year, and hears around 90 cases. Most cases come to the Supreme Court from the Court of Appeal, however, some can come directly from Lower Courts, especially if they are of particular public interest. Cases are usually heard by a panel of five justices. This is similar to how the Law Lords operated. However,

if a case were seen to be particularly important more justices may sit on it. One of the key powers of the Supreme Court is to consider whether or not UK laws and actions of the government have been in line with the Human Rights Act. 

One big difference between the Law Lords and Supreme Court is how open and transparent it is. The Supreme Court uses social media to interact with the public about its work and publishes press summaries on each case. The work of the Supreme Court is also …

videoed and streamed online, wherever possible. Despite the creation of the Supreme Court, it is not altogether clear that the changes that have been brought about because of it are revolutionary

 Appointments to the Supreme Court are far more transparent than that of the Law Lords, previously. However, …

the composition of the court is not broadly different to that of the Law Lords, as of yet. 

There has been a clearer separation of powers. However, there was already friction between the Judiciary and Politicians which would suggest they were already quite separate.moreover …

The move to Middlesex Guildhall has raised the profile of the judicial branch and allowed it to develop its own character

Rulings passed down from the Supreme Court are clearly made with the media and wider 

public in mind. Along with the official ruling, there are press summaries which allow for greater scrutiny of the court by those people who are not legal experts

Overall, the court has seemingly done little to suggest there is a fundamental departure from the previous situation under the Law Lords. For example, the court’s rulings have been mainly regarding the concept of the government acting Ultra Vires (beyond the law) and making ‘declarations of incompatibility’ under the Human Rights Act (1998). Overall, the court has seemingly done little to suggest there is a fundamental departure from the previous situation under the Law Lords. For example, the court’s rulings have been mainly regarding the concept of the government acting Ultra Vires (beyond the law) and making ‘declarations of incompatibility’ under the Human Rights Act

In the USA, the U.S Supreme Court has the power to declare a law or action ‘unconstitutional’. In doing so it can stop a law or an action from taking place. In the UK, Parliament is sovereign and there is no codified Constitution, therefore, the UK Supreme Court does not have the same power as that of the US Supreme Court`. When judges make decisions in the UK they do have to take into account the wishes of Parliament.

By their nature, Statute Laws cannot be perfect and cannot account for all situations. Therefore, by making decisions and creating Common Law, judges have to ‘fill the gaps’ in Statute Law. When doing this, judges have to be mindful of what Parliament intended in a Statute Law.   

In the Supreme Court Case of HM Treasury v Mohammed Jabar Ahmed it was ruled that the Government had acted unlawfully by freezing the assets of suspected terrorists. The Government was disappointed with this ruling. As a result …

 they persuaded Parliament to pass the Terrorist Asset-Freezing Act (2010). This is a good example that, ultimately, Parliament is sovereign. 

 Despite not being able to find government acts unconstitutional the judiciary does have a role in Judicial Review. UK courts can be asked to review the actions of the government and can decree whether or not they have acted within the law. If they believe that the government has acted Ultra Vires (beyond the law) then they can demand that an action is amended or reversed. Judicial Review has become increasingly common in recent years …

The growth of Judicial Review can bring the Executive into conflict with the judiciary. The very nature of judicial review means that courts are considering the actions of the government and deciding whether or not they are appropriate. Cases like Evans vs Attorney-General and Brexit vs Miller lead to the appearance that the government is being publicly criticised by the judiciary.

The broad term for when Judicial Review can be considered is known as ‘Ultra Vires’. This means times in which the government has acted beyond the law. However, this can also be split into three further parts:

illegality (eg. an action not taken in accordance with the law) irrationality (eg. an action not taken reasonably) or irregularity (eg. a failure to consult properly or to act in accordance with national justice)

Judicial review has grown significantly in Britain. In 2018 there were 3,597 applications for Judicial Review in the High Court. However …

 of these, just 184 cases (around 5%) reached the courtroom. Most were withdrawn, refused or a settlement was reached outside court.  

In the 2019 Conservative Party General Election manifesto they made the following pledge:

“ We will ensure that judicial review is available to protect the rights of the individuals against an overbearing state, while ensuring that it is not abused to conduct politics by other means or to create needless delays.”

This plan was confirmed in the 2021 Queen’s Speech and will be taken forward through the Judicial Review and Courts Act which received Royal Assent on the 28th April 2022. This act protects certain decisions from Judicial Review. …

 This particularly relates to issues regarding immigration and human rights.  It also introduced suspended quashing orders meaning that a judge can set a time limit for the Government to rectify its error, rather than immediately quashing it.

Critics of the Government argue that this is an attempt at limiting the power of the judiciary after decisions, such as Miller vs Prime Minister, that the Government did not approve of. However, the Government argue …

that there are simply too many judicial review cases that the courts cannot cope. They say that their actions willthat their actions will free up 150 courts days per year for those judicial review cases that are most constitutionally important.

Treasury v Mohammed Jabar Ahmed 2010

 The case concerned three brothers who had been under investigation by the police for suspected links to terrorist organisations. Importantly, none had been charged with any terrorism related offence. However, on the 2nd of August 2007, they were informed that HM Treasury had reasonable grounds for suspecting that they had links to terrorist organisations. The Treasury informed them that they had been designated under a United Nations Terrorism Order. The Treasury alleged that they had intelligence to suggest that all three had been involved in fundraising for Al-Qaeda. All three denied any associations with Al-Qaeda. However, the Treasury informed the three individuals that they were subject to an ‘asset freeze’, meaning that their monetary assets could not be moved abroad

 The reason for doing this was to stop them from continuing, in the Government’s view, of funding terrorist groups.. the issue of law at hand was whether or not in freezing the assets of the potential terrorists the government had acted ultra vires. in april 2009, judge collins in the high court ruled the it had been, and quashed the orders. Following an appeal by the government of the High Court decision, the Supreme Court Justices in the case ruled that HM Treasury had acted ultra vires by imposing the asset-freezing order and ruled that it should be overturned by 6-1. In particular, the justices noted that it was unreasonable that the order could not be contested in court (as any criminal charge could be).

three Labour MPs: David Chaytor (guilty of false accounting of £18,350, sentenced to 18 months imprisonment) Jim Devine (guilty of fraudulently claiming £8,385, 16 months imprisonment) Elliot morley (Guilty of two charges of dishonesty, sentenced to 16 months imprisonment). However, these MPs argued that their actions were protected by parliamentary privilege as the payment of expenses was necessary to enable them to fulfill their role as MPs. As a result of their belief that they were protected by parliamentary privilege, their legal argument was that the Crown Court (criminal courts) had no jurisdiction to try them for any crime and therefore their conviction should be overturned.

the issues of law in R v Chaytor and others 2010 was whether the illegal actions taken were privilege and therefore not within criminal court jurisdiction, The Court of Appeal dismissed the arguments of the appellants.The Supreme Court unanimously dismissed the appeal by the appellants. They found no basis in law for the notion that acts that would be criminal if committed outside Parliament are by necessity protected by parliamentary privilege if committed by MPs. They noted that just because something happened in Parliament it did not make it necessarily a “proceeding of Parliament”, as required to be afforded the protection of privilege. The judgement stated that the fact that Parliament had actively supported the police investigation and made no attempt to assert the members privileges, indicated that the protection did not extend to the three members.

In 2010 a Guardian journalist named Rob Evans became aware that Prince Charles had been sending private correspondence to government ministers. The letters were nicknamed the ‘Spider Letters’ due to the Charles’ unique penmanship and presentational style. Evans made an application under the Freedom of Information Act for the letters to be disclosed. As Prince Charles will one day become Britain’s constitutional monarch, and will be expected to be politically neutral, Evans and the Guardian believed it was in the public interest for this material to be published. In 2012 the Government refused to release the papers. They argued that the letters had been written by Charles in preparation for him becoming King and were done so under the expectation that they would be published.  In 2012 the Government refused to release the papers. They argued that the letters had been written by Charles in preparation for him becoming King and were done so under the expectation that they would be confidential. The Government argued that disclosing the documents may damage Charles’ ability to perform as King in the future. Subsequently, Evans then took the government to court to force the disclosure of the letters. 

Whether communications between a member of the Royal Family (and particularly the heir to the throne) and government ministers were disclosable under the Freedom of Information Act (2000) or whether they were exempt from disclosure under Sections 37,40 and 41 of the Act: section 37(limits disclosure of communications with the monarch, heir or second in line) section 40 (personal data within the data protection act), section 41(information provided in confidence). the supreme courts ruled by 5 to 2 that there was no right to vet the disclosure of the letters. they were subseuqently disclosed

In June 2016 Britain voted in the EU Referendum to leave the European Union. To carry this out, the government was required to send the Article 50 declaration to the EU. This was the letter that would formally state that Britain was leaving. The government planned to trigger Article 50 without parliamentary consent, believing their mandate came directly from the referendum result and fell within the Government’s royal prerogative powers. However, an activist called Gina Miller bought a case that argued that Parliament had to consent to triggering Article 50.

   The High Court ruled that as Britain had joined the European Union via the European Communities Act (1972), it was incumbent on the government to seek Parliament’s approval to reverse that decision.The Supreme Court upheld the decision of the Supreme Court that consent was required from Parliament to trigger Article 50. They voted by 8-3. They concluded “..where, as in this case, implementation of a referendum result requires a change in the law of the land, and statute has not provided for that change, the change in the law must be made in the only way in which the UK constitution permits, namely through Parliamentary legislation.

 In 2004 Parliament passed the Civil Partnerships Act. This granted same-sex couples the right to seek a civil partnership, which would give them similar legal rights to heterosexual married couples. However, there were some slight differences, for example, adultery was grounds for a divorce in a marriage but not for the dissolution of a civil partnership. Many heterosexual couples argued that the law was discriminatory and was not compatible with the European Convention of Human Rights and the Human Rights Act (1998). However, the government argued that the CPA was explicitly designed to give same-sex couples rights they otherwise could not achieve and was therefore a proportionate means to achieve a legitimate aim (the legal reason that discrimination is allowable). However, with the  passage of the Same-Sex Marriage Act (2013), this position became more difficult to maintain. Same-Sex couples could now, if they wished, enter into a marriage and receive equal legal rights with a heterosexual couple. One couple, Rebecca Steinfield and Charles Keiden, decided to launch a judicial review to challenge the fact that they could not get a civil partnership.

The High Court rejected the arguments of the appellants. The judgement said “The difference in treatment complained of does not infringe a personal interest close to the core of the right to family life, still less the right to private life protected by Article 8 [of the ECHR]”. The Court of Appeal also dismissed their claim. The Supreme Court unanimously ruled that the current procedures were ultra vires. They found that although precluding heterosexual couples from a civil partnership had originally been legitimate and proportionate, this position was no longer possible to maintain now that same-sex couples had equal marriage rights. The Court decided that the elements of the CPA that precluded it as an option for same-sex couples were incompatible with Article 8 of the ECHR

In 2014 Gareth Lee, a volunteer for an LGBT organisation in Belfast, entered a shop owned by Asher Baking company and ordered a custom made cake. He had been invited to attend an event marking anti-homophobia week and wanted to take a cake with him. Mr Lee had previously bought cakes from the store without issue. Mr Lee asked for a cake with the a picture of “Bert and Ernie” and the headline “Support Gay Marriage”. The order was taken and payment was made. However, subsequently, the proprietor phoned Mr Lee and said his order could not be fulfilled as the owners were Christians and would not print the slogan due to their religious beliefs. Lee subsequently took the owners to court claiming he has suffered discrimination based on his sexual orientation and political opinion. The bakery argued that they did not refuse to bake the cake because Mr Lee may have been gay, but because they did not support the political message he had requested was printed on it. They argued that therefore they were acting inline with their own freedom of political expression. 

   The first court found in Lee’s favour, but the case was appealed to the Court of Appeal. The Court of Appeal served a notice on the Attorney-General, making the Northern Irish government a party in the case. The Attorney-General requested that the case go immediately to the Supreme Court because there was a conflict between Northern Irish law and the ECHR. The Court of Appeal rejected this request. The Court of Appeal agreed with the lower court that Mr Lee had suffered discrimination based on the ground of sexual orientation.     The Supreme Court found, in the case of discrimination based on orientation, in favour of the bakery. They noted that the message supporting gay marriage was distinguishable from someone being homosexual (as many heterosexuals support gay marriage). There was no evidence that the owners knew Lee was homosexual (though they may have assumed that) and therefore discrimination on the grounds of sexual orientation could not be found to have taken place. On the issue of political beliefs, the Supreme Court found that Mr Lee was not the subject of the discrimination. They found that whilst the bakers could not refuse to serve Mr Lee because of his own political beliefs on same-sex marriage, they could not be obliged to take an action (bake a cake with a message) with which they profoundly disagreed due to their own political beliefs. 

Prorogation is the process by which a Parliament comes to an end. When parliament is prorogued, its business stops and any bills in process die. Although it is the monarch who formally prorogues Parliament, this is done on the explicit advice on the Prime Minister. On 28th August 2019 Parliament was prorogued by Elizabeth II, on the advice of the PM, Boris Johnson. The government claimed prorogation was necessary as the Parliament had sat for 341 days, much longer than most Parliaments. However, the length of the proposed prorogation was three weeks, when most prorogations were closer to a single week. It was suspected that the government was taking this action this to stop MPs debating Brexit and to put further pressure on Parliament to accept a deal before the 31st October extended Article 50 deadline.

The High Court ruled that the case was non-justiciable, meaning it was a political matter that was not within their jurisdiction to make a judgement on. However, the Scottish Court of session unanimously found the prorogation was unlawful. The case heard at the UK Supreme Court was an amalgamation of appeals for two separate cases, one in Scotland and one in England. The ruling of the Supreme Court today found that Boris Johnson’s prorogation of Parliament had been unlawful. Importantly, they stressed that the motives for the Government’s actions were not central to the issue. They said that the fact that prorogation had stifled parliamentary debate meant that “the effect on the fundamentals of democracy was extreme”.

Membership of the EU between 1973 and January 2020 changed the interrelationship between the judiciary and government. As part of joining the EU, law in the UK had to be compatible with EU law. A prerequisite of joining the European Union (then E.E.C) was accepting that Community Law was superior to national law. This caused problems in Britain, because of the importance of Parliamentary Sovereignty in the UK.

When Britain was believed to have transgressed European Law, Direction and Regulations, the European Court of Justice would challenge UK laws and the government would need to respond. However, since the Factortame Case, it was the job of the UK Courts to suspend any UK law that is in violation of EU law.

The factortame case grew out of a complaint by a Spanish Fisherman that the British Merchant Shipping Act of (1988) violated the Single European Act (1986) by requiring all vessels using UK fishing quotas to register, and that they were only able to do so if they met certain nationality requirements. The case was referred by the UK High Court to the European Court of Justice and told the Transport Secretary not to take any further action until the issue had been resolved. The Law Lords in the House of Lords overturned this, saying that no UK court could overturn a parliamentary statute. however …

In 1990 the European Court of Justice said that UK Courts do have the power to suspend Acts of Parliament, if they appear to break EU law. This judgement effectively guaranteed the supremacy of EU law over UK law and bought further into question the issue of Parliamentary Sovereignty.  Despite this being evidence on political sovereignty becoming compromised, the UK Parliament does retain legal sovereignty in that it will now overturn the European Communities Act (1973) via the EU (Withdrawal) Bill

Judicial Independence is the notion that judges should be a separate entity from the other branches of government. Judicial Independence is necessary to truly uphold the Rule of Law. The opposite of Judicial Independence is …

Judicial Activism. This is the term given when the judiciary has a more active role in the political system.Increasingly, despite the changes made in the Constitutional Reform Act (2005), it may actually be becoming harder for judges to maintain political independence.

 A member of the Senior Judiciary can only be removed by a vote in both Houses of Parliament. the security of tenure means …

that judges don't have to worry about their next job, and pleasing anyone to get it

 The salaries of judges are not set by politicians. This means that judges don’t have to impress MPs to receive a pay rise! also,

It is a criminal offence for politicians to speak out about a criminal case during its proceedings. This helps to stop cases from becoming politicised. 

 Judges rely on their reputation for impartiality for their future advancement and success. Most judges are …

unwilling to compromise this by becoming politicised.

Since the Constitutional Reform Act (2005) the fusion of powers that entangled the judiciary, executive and legislature has been removed. The Supreme Court is now housed in a separate building given it a greater sense of political independence …

The creation of the Judicial Appointments Commission means that political influence over judicial appointments is now very limited. Whilst in theory the Lord Chancellor can reject a recommendation this has not happened since its creation and it would be very controversial if it did.

Judges often practice judicial restraint, being careful not only overturn case law if there is a clear necessity. This can be seen in R (Nicklinson) v Ministry of Justice when an appeal to challenge the law on euthanasia was rejected by the judiciary

There is an expectation that Government Ministers respect the decisions of judges and do not publicly question them. There is also an expectation that Ministers do not comment on the likely outcome of a potential legal case. This convention is usually followed.

Government Ministers have become increasingly willing to question the judgement of courts. This was notably seen during Brexit when Ministers were critical after both Brexit v Miller and Miller v Prime Minister

The implementation of the Human Rights Act has the judiciary have to adjudicate much more in controversial political decisions. Since the passage of the Human Rights Act there has been a growing number of judicial reviews as people are more aware of their rights.  

Recent policies by governments have been designed to limit the power of the judiciary by reducing their role in judicial review. This is most notably seen in the …

Judicial Review and Courts bill which limits the scope of judicial review but also in the policy of removing the majority of legal aid available for people to challenge for their rights in court. 

Judicial neutrality refers to the notion that the judiciary are impartial when it comes to political issues. The impartiality of the judiciary is essential to its operation. There are competing arguments over whether the judiciary is truly neutral. arguments in favour oif this idea include …

Judges rely on their reputation for neutrality in order to progress their careers. They are unlikely to risk their reputations by taking a political position. Judges are forbidden from engaging in political issues and are careful about offering comment on them.The judiciary operates on the principle of transparency. This is increasingly the case since the formation of the Supreme Court. Whilst almost all court cases are open to the public the Supreme Court is transmitted live via the internet. Judicial judgements are incredibly detailed. For example the Supreme Court judgement of Miller vs Prime Minister was 25 pages long and in Miller vs Brexit it was 98 pages long. This shows the depth of legal consideration that has been shown to come to their judgements. In recent years the senior judiciary has become more diverse. For example, by 2020 the number of women appointed to the High Court and above was 26% compared to 13% before the JAC was established.

The media have become increasingly hostile to the judiciary. This was most notably the case after the High Court ruled with Gina Miller in Miller vs Brexit and the Daily Mail carried a headline …

 ‘Enemies of the People’. The fact that the media can do this makes it appear that the judiciary is not neutral

Senior judges have at times felt forced to defend their neutrality after public attacks. In particular, Lord Neuberger was critical of the government after the Article 50 case for not being forceful enough in their defence of the judiciary.

The senior judiciary is far from descriptively representative and is taken from a narrow social background. This has led to criticisms that it does not understand the issues faced by minority groups.Traditionally the judiciary is perceived by many to have a left-wing bias. This has led to suggestions that the judiciary is far more concerned with protecting individual rights than collective rights.

Additionally, there have been a number of issues over which there is often controversy tension between the government and the judiciary. Politicians often find that the sentences given by judges is too lenient. The Government have the right to seek a review of sentences through the ‘unduly lenient’ scheme. This happened in the case of Wayne Couzens, the murderer of Sarah Everard. Furthermore, politicians are often …

frustrated when judges rule that prominent prisoners should be given parole. In the past the Home Secretary could ensure a prisoner stayed in life for prison. This happened with Myra Hindley. Recently Dominic Raab criticised the Parole Board for agreeing to release Tracey Conolly, the murderer of Baby P.  There is often tension over the issue of rights. Governments often want to place an emphasis on public protection over individual rights and the courts often consider this differently. This can be seen clearly in A. v. Home Secretary.

The ability of the SC to find the government has acted ultra vires even on controversial political decisions like Miller v PM or Miller v Brexit and the ability of the Supreme Court to rule that The government to rule that the has acted in contravention of the Human Rights Act (1998) gives the Supreme Court some power of elected officials suggest it has enough power. however …

 The Supreme Court cannot initiate cases and relies on cases being bought by claimants and has no power to find that something is unconstitutional and it cannot strike down any law passed by Parliament.

The huge increase in the number of judicial review cases have led to the Supreme Court being asked to make more judgement on political decisions However …

The Supreme Court is playing the same fundamental role and has the same fundamental powers as the Appellate Committee of the House of Lords has. However, it is just more visible than the Law Lords were.

The ability of the Supreme Court to rule that the government to rule that the has acted in contravention of the Human Rights Act (1998) gives the Supreme Court some power of elected officials. This said …

The Supreme Court has moral authority, however, Parliament is sovereign and it cannot be forced to take any action they do not wish to take and most judicial review cases do not make it to oral hearing and are dismissed (or settled) before they get to court.

Arguments for the idea that judges should have more political power include that they  play a key role, particularly when conducting judicial reviews, in ensuring that government and other public bodies operate within the law and do not abuse their power. They also have a role (along with Parliament) in ensuring that human rights and freedoms are upheld. Judges are not politicians and are …

 independent from politics. They are, therefore, in a strong position to prevent abuses of power by governments who may wish to gain political advantage. They uphold the rule of law, whereby all citizens are treated equally under the law and while  politicians are often influenced by varying public opinion, judges can operate strictly within the law and so prevent abuses of power or human rights which may take place merely to satisfy the short-term public mood. 

Judges are not elected and are, therefore, not accountable. This means they may make judgements which take no account of the national interest or public opinion. Neither Parliament nor the public has any …

 way of calling judges to account, so their power should be controlled. Judges sometimes make rulings that may prevent the government from carrying out its functions and political mandate. In cases where there is a dispute between the power of government and the power of judges, it is argued that democracy demands that government should prevail. 

When upholding EU law or the European Convention on Human Rights, UK judges are sometimes challenging the sovereignty of Parliament, a key principle of the UK constitution. It has been argued by some commentators that …

the UK's senior judiciary is out of touch because its members come from such a narrow social background, being largely educated at private schools and Oxbridge.

There are a number of roles that the judiciary has in protecting civil liberties. This includes via ruling of Judicial Review cases that are bought to them by citizens. By issuing declarations of ….

 incompatibility to encourage the UK Government to comply with the Human Rights Act (1998), through listening to appeals within the courts system or through their interpretations of Common Law. 

In recent years there has been a growth in the number of judge-led inquiries. These are quasi-judicial proceedings that investigate an issue, usually one that is politically controversial. The purpose of referring the issue to a public inquiry is to …

try to take the issue out of the political arena and allow it to be independently investigated.

During the height of the Troubles in Northern Ireland up to 21,000 British troops were deployed in a peacekeeping operation. On the 30th January 1972 a march was held in Londonderry in protest of republicans who had been held without trial by the British government. The 1st Battalion of the parachute regiment were deployed to the area. On arrival …

the paratroopers were ordered to arrest rioters. The situation escalated quickly and a number of shots were fired by the British Army. In total, 26 people were shot and 14 people were killed. This led to the Saville inquiry

Saville was published on the 15th June 2010. The report was clear that British Soldiers were to blame for the killings. Saville found that British soldiers on that day had “lost control” and that they should never have been in the Bogside area in the first place. The report also found that …

British soldiers had colluded to cover the truth in the aftermath of the incident. On the day that report was published David Cameron, just two months into his tenure as Prime Minister, addressed the House of Commons and apologised on behalf of the British Government

The Hutton inquiry was a 2003 investigation into the 2003 death of David Kelly, a UN weapons inspector in Iraq. The investigation was led by Lord Hutton, a judge and the head of the Court of Appeal. David Kelly had been the source of suggestions by …

BBC journalist Andrew Gilligan that the Iraq Dossier had been ‘sexed up’ by Tony Blair’s government in order to win support for war in Iraq. The inquiry delved deep into the heart of the Tony Blair government and particularly, the relationship between Tony Blair’s government and the Press. 

 In reaction to the Phone Hacking Scandal, Lord Leveson led an independent inquiry into the issue. This went to the heart of David Cameron’s government, because the editor of the News of the World during the scandal, Andrew Coulson, had gone on to become David Cameron’s Director of Communications. Most embarrassing for the government, was the …

seemingly intimate relationships between all recent governments and the media mogul, Robert Murdoch

The fact that judges are trusted to carry out these tasks is indicative of the trust that is placed in their impartiality. Public inquiries might be said to be beneficial because …

They allow controversial issues to be considered beyond the political arena. The evidence based approach and independence of those leading them adds significantly to the legitimacy of their findings. People are much more likely to trust an independent inquiry that has been carried out than an inquiry carried out by Parliament.  Statutory Inquiries can take evidence under oath and can subpoena witnesses.

Many inquiries take an extremely long time to publish. Notably, the Chilcot Inquiry published its findings much later than planned. This led to much …

frustration by the public.Inquiries are often hugely expensive. For example, the Bloody Sunday Inquiry cost £210.6 million pounds. The main reason for this cost is the legal expertise that is needed to carry them out.