ETV that the SC operates with sufficient judicial neutrality and independence

P1: Judicial neutrality

• The idea that judges will exercise their functions without being influenced by personal bias or public opinions

• Judges have traditionally remained largely anonymous rarely seeking out in public and avoiding comments on their rulings or airing views about the government

• judges have to base each decision in law and provide a full explanation of how they reached it

• Supreme Court decisions are published in full for people to read and scrutinise

Supreme Court judges elevation to the benches based on their past performance experience and the expectation they will set aside their personal views

 

conflicts of interests are avoided by preventing Supreme Court judges from sitting on cases in both family friends and others they know personally

HOWEVER

• the extremely narrow composition of the court in terms of gender age education class and race have led to very reasonable concerns as to how this impacts our supreme courts neutrality

• the neutrality of the courts including the Supreme Court has been questioned in relation to importing cases that relate to Brexit

of the current justices 11 are male 12 are white 11 have studied at oxbridge 12 are over 60 and the majority went to private school. This led to the times describing the SC as pale, male and stale  

the facts the court had only one female member was significant in the case of Radmacher v Granatino a case involving a prenuptial agreement between marriage partners in which a majority of the justices upheld the principle that claims made in the event of a divorce should be limited

 

P2: Judicial independence- safeguards

• judicial independence is the idea that judges must be free from political interference particular from the government

• judicial independence is safeguarded through

 

• security of tenure judges can't be removed from office unless they break the law or impeach by vote in both Houses of Parliament

• the only limits on their services an official retirement age of 70

• pay judges salaries are paid automatically from an independent budget known as the consolidation funds which can't be manipulated by the government

• since the constitutional Reform Act new Supreme Court justices are nominated by an independent 5 member selection committee consisting of the president the court a member of the judicial appointments committee and a member of each of the equivalent bodies for Scotland and Northern Ireland

• Physical separation from parliament

• Sub-judice rules preventing MPs, gov. Ministers and the media from publicly speaking

HOWEVER

• Recent actions of the media and politicians are challenging the safeguards of the independence of the court

• Especially surrounding two key cases in relation to Brexit

The Article 50 case and the prorogation of parliament, the work of the SC has become increasingly high profile and politicised in recent years

 

SC justices are no longer as anonymous as they used to be- challenging the image of the SC as an independent court

 after the High Court ruled in November 2016 that the consent of parliament was needed to trigger article 50 the Daily Mail ran the headline enemies of the people with pictures of the three High Court judges suggesting that they would define democracy and the wishes of 17.4 million Brexit voters

after the Supreme Court ruled in 2019 that Boris Johnson's prorogation of parliament was unlawful various right wing commentators and Johnson allies describe Supreme Court judges as arch remainders

P3: Judicial independence-judicial review:

ministers are committed to the All of judicial independence whilst judges understand the limits to their role so they don't become engaged in policy making.

• The Supreme Court practises judicial restraint whilst ministers remain committed in public to protecting the independence of the judiciary. The court is taking on more of a constitutional role and more rights cases but this has been brought about by the passage of the HRA and the constitutional reforms since 1997.

• Furthermore it could be argued that the conflict between the government and the SC is not due to the court extending its political role but because the government has increasingly sought to act ultra vires

 

The SC. Has continued to implement the law  and protect the rights of individuals and the sovereignty of parliament

 

2015 Black spider memos case- FOI requesting government to release the letters and memos sent by prince Charles to government ministers

HOWEVER

 

• greater judicial activism in recent years suggests a determination on the part of judges to develop their own view of the proper application of the law.

• This growing willingness, has been in seen in both the Cherry/Miller cases, of ministers to criticise the Court and its decision is a threat to judicial independence

• whilst increasingly the court is taking a judicially active role taking rights cases and constiutional cases. There has been a decline in the strict observance of the kilmuir rules 

The media commenting on court decisions

For instance the Gina Miller case declared the government did not have the authority to begin the process of withdrawing from the EU. Al Rawl et al v The security Service et al (2011) SC ruled in favour of the detainees. R v Lord Chancellor (2017) ruled in favour of UNISON.