supreme court essay plans

ETVT the Supreme Court is independent

Yes

argument pair 1

weaker:

* the judicial function used to be entangled with the executive and legislature
* before the CRA the Law Lords were the highest court in the land meaning the legislative and judicial were fused
* the three functions of the state were fused in the Lord Chancellor
* the power of elected politicians over the appointment of judges made it seem as though appointments were open to political influence

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stronger:

* the CRA 2005 strengthened the serration of powers by establishing the Supreme Court and splitting the roles of the Lord Chancellor
* the CRA meant that judicial independence moved from a constitutional convention to an Act of Parliament stating that it must be upheld
* the appointments process established the JAC to ensure there were no concerns of political interference in the process
* the judges are paid enough to ensure integrity and impartiality, the salaries are overlooked by a non-political body called the Senior Salaries Review Body
* they have security of tenure meaning they cannot be sacked once appointed, the possibility of removal or demolition therefore cannot effect their decision making
* e.g. the last time a judge was removed by an Act of Parliament was in 1830

argument pair 2

weaker:

* growing willingness of ministers to publicly criticise the courts as the separation of powers mean that judges and ministers do not understand each others roles
* e.g. in 2013 Home Sec Theresa May accused judges of making the UK more dangerous by ignoring rules aimed at deporting foreign criminals due to their belief in Article 8 of the HRA
* decisions around Article 50 and the prorogation of Parliament also saw a growing willingness of politicians to publicly criticise the courts
* e.g. Reese-Mogg described the 2019 ruling as a ‘constitutional coup’

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stronger:

* ministers are relied upon to uphold the independence of the judiciary by observing constitutional conventions such as that to not use judicial contacts to influence decisions
* ministers should exercise restraint when commenting on decisions
* the sub-judice rules prohibits parliamentary debate of matters currently before the courts

ETVT the Supreme Court is neutral

Yes

argument pair 1

weaker:

* there are an increased amount of attacks from the media on the character of judges, their visibility as public figures undermines their impartiality
* e.g. over the Article 50 case in 2019 the character of judges and their decision making was questioned as well as their neutrality on Brexit, Reese-Mogg ‘constitutional coup’ and papers ‘what’s lawful about denying a 17.4m Brexit?’
* e.g. the President of the Court at the time, Lord Neuberger, was publicly criticised claiming that the Court undermined the rule of law and the reputation of the legal system

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stronger:

* the judges must sign the Judicial Oath which states that they must be impartial, accountable to the law and should enhance the confidence of the public
* they are expected to refrain from activities which could create legal bias or conflict of interest, they must not engage in political debate
* the Supreme Court is live-streamed which creates a level of accountability
* e.g. the stream of Article 50 saw the Court tackling legal questions about constitutional issues and the balance of power in the UK, not the pros and cons of Brexit

argument pair 2

weaker:

* it is not a diverse court with the Senior Judiciary mainly male, white, upper-class, private schooled and Oxbridge educated
* e.g. in 2020 the Supreme Court only had 2 female judges, no BME and the majority Oxbridge educated
* e.g. the difference in opinion was shown in a high profile divorce case between Radmacher and Granatino where only Lady Hale as a woman was biased the other way seeing prenups as disadvantaging women
* it is also criticised for being biassed against minority groups

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stronger:

* the judiciary is becoming more diverse
* e.g. Lady Hale became the President from 2017-2020 as a state educated woman for the first time
* e.g. since the establishment of the JAC it has gone from 13% women to 29% women in 2018
* e.g. in the same period the proportion of BME candidates for the High Court went from 2% to 6%
* all the judges have extensive legal training enabling them to judge without bias

ETVT the Supreme Court has too much power

No

argument pair 1

weaker:

* the power of judicial review limits the executive branch as the courts can declare actions of the executive ultra vires or in contravention with the HRA
* this acts to protect the rule of law and give the public the ability to challenge the lawfulness of the actions of public bodies
* e.g. the UNISON case of 2017 when the Fees Order was ruled ultra vires the government immediately stopped collecting them and reimbursed fees already collected

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stronger:

* the court is bound by what the law states and can only rule on the lawfulness of actions
* the executive has the power to place a new bill in front of Parliament to change the law e.g. passed the Terrorist Asset-Freezing Act in 2010 after the Terror Order was ruled ultra vires
* this act meant on Parliament has the right to determine in what circumstances individual rights can be restricted
* the Supreme Court also cannot initiate cases

argument pair 2

weaker:

* the Supreme Court has the power to declare AoPs incompatible with the HRA which encourages Parliament to take action to amend or remove the law in question
* e.g. in 2004 the indefinite detention without trial clause was ruled incompatible forcing the government to introduce the Terrorism Act 2005 and form control orders

stronger:

* declarations of incompatibility are subject to Parliamentary Sovereignty so cannot strike down AoPs or force Parliament to take action
* e.g. in the Belmarsh case 2001 the government itself chose to change the law
* e.g. the government also had to choose to amend in the law when the Civil Partnerships Act 2004 was declared incompatible