SC - creation, roles, neutrality and independence

Purpose of Constitutional Reform Act 2005

• Improve and guarantee independence of the UK judiciary

Action of CRA 2005

• Establishment of Supreme Court (became active in 2009)

Independence of judges pre-2005 CRA

• Claim that senior UK judges were independent of political influence but there was mixed evidence as to if it was truly upheld

2 elements of judicial independence post-2005 CRA

• Removal of doubts surrounding judicial independence

• Independence of judiciary and SC codified in law

  • President had to guarantee and maintain this independence from political and public pressure

Pre-CRA judiciary structure

• 12 Law Lords/Lords of Appeal in Ordinary

  • Members of the HoL

  • Expected to be neutral cross-benchers but were free to take part in the HoL

  • Up to 5 sat on each case

• Head of Law Lords - Lord Chancellor (all male pre-2016)

3 roles of Lord Chancellor pre-CRA

1. Speaker (chair) of HoL (member of legislature)

2. Cabinet minister for the direction and management of the UK legal system (member of executive)

• Advised the govt on legal policy

• Appointed senior judges

• Decided which Law Lords would hear each appeal case

3. Head of judiciary as the most senior judge in the UK (member of the judiciary)

Lord Chancellor post-CRA

• No longer the head of the UK judiciary

  • Still exists as a role- was combined with the Justice Secretary (cabinet position)

  • No longer active member of the judiciary

  • Ceased to be the speaker of, or sit in the HoL

Pre-CRA highest court in UK (and also appointer of law Lords)

• Appellate Committee of the House of Lords

Head of UK judiciary post-CRA

• Lord Chief Justice/President of the Courts of England and Wales

  • Non-political senior judge

Composition of SC

• 12 senior judges called the Justices of the SC

  • Have to retire at 75

  • Min 3, max 11 sit at any one time to ensure a majority

• Head known as the President of the SC

  • Lord Reed, Lady Hale

  • Deputies: Deputy President Lord Hodge

3 examples of Law lords being political

1. 1996 Lord Hoffman proposed amendment to bill about Plmtary Privilege to allow Neil Hamilton (cash for qs MP) to sue Guardian for defamation

2. 1999 Lord Hoffman sat on case regarding extradition of former Chilean leader Augusto Pinochet despite being director of Amnesty (party to case)

3. Lord Hoffman and Lord Scott had to be recused from a case because they voted against the 2004 Hunting Act

% of Law Lords that spoke in debates in December 1970

25%

% of Law Lords that spoke in debates in December 1990

17%

Filling a Law Lord vacancy pre-CRA

• ‘Secret soundings’

  • Lord Chancellor consulted sitting judges and could appoint someone who hand’t formally applied

• Unrepresentative

Filling a LL vacancy 1994

• Jobs advertised and panel interviews took place

  • Included Senior Judge and someone from outside legal profession

Filling a SC vacancy post-CRA

• Judicial Appointments Committee established- proposes a candidate to the Lord Chancellor who basically has to accept it

  • Consisted of senior law officers from across the UK

Dismissal of SC Justice post-CRA

• SC justice can only be removed by a vote in BOTH houses, which hasn’t happened since 1830

  • Not for their decisions, but for misconduct

• Judges unable to be removed on grounds of decisions they made

  • Can only be removed due to corruption or personal conduct incompatible with being a judge

Security of tenure and salary post-CRA

• Salary of judges guaranteed to ensure security of salary

  • Removal of fear of political pressure or influence

• Judges have security of tenure and remain in office until the age of 70

Rule of subjudice + example

• Only convention, can be defied

• Contempt of court for any servant of the govt to attempt to interfere with the result of a court or comment on a case in public or plmt

  • Govt should not use its contacts in the judiciary to influence political decisions

  • Ministers should refrain from commenting on decisions, whichever way they went

  • Subjudice- Plmt cannot debate matters currently before the courts

• Example:

  • Starmer discussing the SC case regarding Palestinian’s right to live in the UK due to laws put in place to protect Ukrainians in PMQs

6 roles of the Supreme Court

1. Ensuring the rule of law is applied

2. Interpreting the law

3. Conducting judicial review

4. Final court of appeal

5. Hearing cases of importance

6. Resolving legal disputes between devolved institutions and 🇬🇧 Plmt

6 principles of the SC

• Highest court in the UK

• Independence from political pressure

• Membership due to legal experience and good judgement as opposed to political bias

• Only Plmt able to overturn SC decisions by passing new, or amending existing, legislation

  • Rwanda Bill: ruled illegal as SC said Rwanda was not a safe country, Plmt passed law to say Rwanda was a safe country

• Enforces the ECHR, rule of law and freedom of information act

• Asserts Common Law Rights

5 cases that the SC hears

• Judicial reviews for important bodies, such as the govt

• Cases that have implications for other bodies in order to set a precedent

• Cases that involve important interepretations of the law

• Cases that are in the public interest

• Cases are a key issue of human rights

Ensuring the rule of law is applied

• Oversees the work of lower courts in the UK

• All courts have a duty to ensure maintenance of the rule of law, but this is a key role of the SC

• Ensuring all citizens are treated equally under the law

• Trials and hearings:

  • Ensuring that all parties gain a fair hearing and

  • The law is applied in the spirit it’s intended

Interpretation of the law

• Precise meaning of statute/common law is not always clear

• Needed: circumstances under which those in a court conflict about what the law is suppposed to mean

• Sets judicial precedent: other judges must follow the same interpretation as the SC

Conducting judicial reviews

• Process citizens go through when they feel they have been mistreated by a public body

  • E.g. different treatment of citizens, clear injustice such as acting ultra vires, devolution (power and limits of devolved bodies)

• Examines and establishes wrongdoing

• Compensation given, or reversal of decision

Hearing cases

• Up to 11, usually 5, SC judges hear each case

  • Majority needed to pass

• Only the ECHR can reverse the SC’s judgement if human rights are at stake

Achievement of democratic objectives

• Ensuring the govt doesn’t overstep powers

• Asserting the rights of citizens

Importance of Human Rights Act 1998 and Freedom of Information Act 2000

• Boosted the SC

2013 - number of applications for judicial review

• 15 000+ applications made, most refused

2013 — changes to judicial review

• Govt restricted cases able to apply for legal aid

  • Raised court costs

• Chris Grayling, Justice Secretary - aimed to “drive out meritless applications” used as a “cheap delaying tactic” to govt actions

2014- number of JR cases heard; success rate

• 4062 heard

• 36% successful

2015-19 - % decrease in JR applications

• JR applications down by 44%

First time SC adjudicated on devolution

• Martin and Miller v Lord Advocate 2010

  • Holyrood legislated on driving offences (not devolved issue) but thought if they were criminal then they were part of devolved remit

    • SC said Holyrood could adjudicate on driving offences as they were criminal and criminal law is a devolved issue

Recent SC adjudication on devolution

• 2nd Scottish Indyref (2023)

  • SC ruled only Westminster can legislate on referendums

Number of non-Oxbridge educated SC Justices

1

% of SC Justices (ever) who were male

85%

% of SC Justices (ever) who were female

15%

% of SC Justices (ever) who were independently educated

76%

% of SC Justices (ever) who were state educated

21%

% of SC Justices (ever) who attended Oxbridge

88%

% of SC Justices (ever) who didn’t attend Oxbridge

12%

% of SC Justices (ever) who were EM

0%

Example of lack of representation

• Legislating on definition of sex case had 2 female judges, the only ones

  • How can you legislate on ‘women’s safety’ if you’re all men…

3 reasons descriptive representation doesn’t matter

1. Undermines quality of judges

2. Bias — if you’re selected on your background for a case you’re more likely to be biased

3. Should focus on equality of opportunity

Judge’s personal neutrality and accountability

• Judicial oath makes judges swear to the principle of impartiality

• Judges expected to refrain from activities that may create impression of bias/conflict of interest

  • Judges must stick to legal topics and not engage in political debate/controversy

Accessibility of SC

• SC livestreamed so accessible to all

  • Judges are accountable to those watching (theoretically the whole public) and have to explain their rulings

Article 50 case

• Showed that judges look at legal questions about balance of legislative/executive power, not leaving the EU itself

% recommendees for High Court women pre-JAC

13%

% recommendees for High Court women 2017-8

29%

% recommendees for High Court BME pre-JAC

2%

% recommendees for High Court BME 2017-8

6%

Lady Hale

• President of SC 2017-20

• Only female or state educated Law Lord in 2004

Judge’s experience

• Senior judges usually have 20-30 years of experience as barristers or junior judges and have become well-versed in focusing entirely on legal considerations

• Court required to be conducted fairly and judgements are meant to be based on evidence

Role of the media

• Media has often attacked judges for their decisions (some say this is fair game), especially in the Article 50 case

  • Daily Mail called the judges ‘enemies of the people’

• President Neuberger (at the time of the Article 50 case) criticised the media for undermining the rule of law and reputation of the legal system

  • Criticised the gov’t for not defending the judiciary quicker and clearer

Left-wing attack on judicial neutrality

• Bias against minority groups due to lack of social representation within the SC (2 women, no EM, majority Oxbridge educated)

Right-wing attack on judicial neutrality

• Judiciary has inbuilt liberal attitudes- favours individual rights over public interest, supposedly anti-Brexit

Salary recommendations + 2 limitations

• Senior Salaries Review Body (non-political) makes recommendations on judicial salaries

  • Still need to be voted on in Plmt

  • Not always passed, especially during austerity

Judicial restraint

• Judges exercise restraint and refuse to make decisions/take second hearings on issues they believe could be political

  • E.g. 2014, assisted suicide - Nicklinson v Ministry of Justice

3 examples of ministers challenging the independence of the judiciary

1. 2013 - May (Home Sec)

• Accused judges of making the UK unsafe by ruling that deportation of foreign criminals damaged their right to a private life

2. Article 50 decisions led to a lot of backlash from ministers and the media

• ‘Leftie lawyers’ - Johnson

• ‘Enemies of the people’ - the Daily Mail'

3. 2020 immigration law firm suffered attack

• “do-gooder… lefty lawyers” - Priti Patel

• If judges ruled against the govt they were “wet liberals” and “soft on criminals” - ally of then-attorney general Braverman

Impact of independence of judiciary

• No highly significant public inquiries between 2003 and 2010

  • Govts have been reluctant to order them as independence of judiciary acts as deterrent