UK Judiciary

When was the supreme court established?

October 2009

What was the highest court of appeal before the supreme court was established?

• Highest court of appeal comprised of 12 law lords who sat in the appellate committee of the house of lords

• These lords were technically members of both the judiciary and upper chamber of the legislature.

What are the key differences between how the legal arrangements operate in England and Wales compared to Northern Ireland and Scotland.

• England and Wales has a common law based system- Rely on legal precedents, case laws and acts of parliament.

• Scotland combines common law and civil law- written codes applied by judges instead of relying only on legal precedent e.g. works of institutional writers. Also has its own distinct courts like the court of session- which is scotland’s supreme civil court 

• NI also has a common law based system but with a differing legal structure like Scotland

• SUMMARY: England and Wales share one legal system but Scotland and NI each have their own separate legal systems with their own courts and laws

Hierarchy of courts 

• Supreme court 

• Court of appeal 

• High court - Split into divisions

• Crown court 

• Magistrate courts 

Different divisions of high court

• Chancery division-financial and business matters

• Kings bench division- Civil disputes like commercial disputes

• Family division- serious family matters like custody issues and divorce

• Administrative court- Oversees the legality of decisions and actions of inferior courts

Divisions of the court of appeal

• Criminal- listens to appeals from the crown court

• Civil- Appeals from the high court, tribunals and certain cases from county courts

What does the supreme court oversee

• Appeals from the court of appeal and sometimes from high court (from Scotland and NI) 

• Also deals with Devolutionary jurisdictional issues 

Who is part of the senior judicary?

• Supreme court justices

• Heads of division ( High court judges with additional responsibility to oversee the administration of their division)

• High court judges

• Deputy high court judges

• Lord justices of appeal (judges of the court of appeal)

What’s the significance of the senior judiciary?

• Senior judges use their power of judicial review to clarify or establish a legal position where statue law is unclear or absent

• This case law (common law) forms precedent that serves to guide both lower courts and future law makers.

How were appointments made to the senior judiciary before?

• Made by the monarch on the advice of the PM and the Lord chancellor

• Lord chancellor would make their picks on the basis of "Secret soundings”→ Senior judges where privately consulted about candidates

• As a result senior judiciary was drawn from a narrow social circle→ middle class, white Oxbridge educated men. (Such critiques informed the constitutional reform act 2005)

What changes did the constitutional reform act 2005 make?

• Reduced the powers of the lord chancellor→ Independent judicial appointments commission (JAC) now make most senior judicial appointments. (does include lower court judges)

• Created the SC, where 12 justices would perform the roles previously exercised by the law lords who had sat as the highest court of appeal in the appellate committee of the HOL

What was the intention behind the CRA 2005?

• To improve transparency and legitimacy of the process of appointing senior judges

• Enhance the separation of powers

• To make the senior judiciary more representative of the population.

Role of lord chancellor before and after the CRA

Before

• Judicial→ In charge of the courts as the most senior judge below the crown

• Legislative→ Presiding officer of the lords

• Executive→ senior minster in government

After

• No judicial or legislative function

• Is now the secretary of state for justice → responsible for the administration of justice systems like courts and prisons.

In order to be considered for an appointment as a justice in the SC what must candidates have done?

• Candidates must have held high judicial office for at least 2 years

• or been a qualifying practitioner for 15 years.

A qualifying practitioner is someone who ..

• Has a senior courts qualification or

• is an advocate in Scotland or a solicitor entitled to appear in the Scottish court of session and the high court of justiciary or

• is a member of the bar of northern Ireland or a solicitor of the court of judicature of NI

Appointment process of justices in the UK SC

1) A vacancy arises - candidates apply like any other job

2) A five-member selection commission considers possible nominees and makes a selection based on merit ( the 5 members include JAC members of Scotland, NI and England and Wales→ to represent all 3 legal jurisdictions)

3) Commission submits a report to the lord chancellor, identifying a nominee

4) Lord chancellor either rejects the selection, asks the commission to reconsider its selection or accepts the selection by notifying the PM

• For other judicial appointments the LC cannot reject a candidate

5) Once notified the PM must recommend the candidate to the monarch

6) The appointment is confirmed once the monarch has issued letters patent- a formal legal document that makes the appointment official.

Why may one not expect SC to be fully representative of the population?

• Statutory qualifications for office→ Legal requirements to hold office and the extensive prior legal experience required.

How has the composition of current SC justices left it open to accusations of elitism?

• 8 of them have received an independent (private) education

• With only Lady rose being educated in a state comprehensive school

• 11 of them attended Oxbridge

• Only Lord Stephens having attended University of Manchester.

Demographics of SC and UK population 2025

SC

• 67% independently educated (fell from 91% in 2009)

• 92% Oxbridge educated

• 17% women (2) increased from 9% (1) in 2009

• Average age 68.1

• No ethnic minority has held office

UK population

• 8% independently educated

• 1% Oxbridge educated

• 51% female

• Average age 40.5

• 18% population is an ethnic minority

3 reasons why the UK SC was established

• To address the incomplete separation of powers

• Criticism of how the law lords were appointed

• Confusion amongst the public regarding the role and status of the law lords.

Define separation of powers

• Doctrine stating legislative, executive and judicial elements of government should be independent

UK is considered to be a fusion of ..

• Powers

• Pm and minsters that comprise the gov (members of executive) sits in the legislature (parliament)

3 key functions performed by the SC

• To hear appeals in cases where there is uncertainty and thereby clarify the meaning of the law.

• To act as the final court of appeal in England, Wales, and NI

• To hear appeals from civil cases in Scotland → SC is the highest court of appeal for Scotland in terms of civil cases not criminal cases (The high court of justiciary in Scotland is the final court of appeal in criminal cases in Scotland)