The Judiciary of the UK

The Judiciary of the UK

1. Structure of Judiciary

   • Supreme Court
     • Court of Appeal
       • High Court
         • Crown courts, county courts, magistrates courts and tribunals
   • Courts can overrule those below them - hierarchy

2. Principles that underpin Judiciary

   • Rule of law
     • Key doctrine of const
       • A.V Dicey - Rule of Law = pillar of const
   • Judicial Independence
     • Based on 5 main pillars
       • Tenure
         • Retire at 75, can't be influenced by politicians by threats of being suspended or sacked
       • Salary paid from Consolidated Fund
         • Politicians can't manipulate judges salaries to control them
       • Contempt of Court
         • Prevents media, MPs etc from speaking out to try and influence jury
       • Independent Judicial Appointments Commission
         • Under Constitutional Reform Act 05
         • Greater transparency of appointments, reduces political bias in process
       • Professionalism
         • Most do long apprenticeships & take lots of pride in reputation, unlikely to defer to politicians if they think it will compromise integrity
   • Judicial Neutrality
     • 4 main ways
       • Relative anonymity
         • Until recently senior judges rarely spoke out publicly on issues
           • Expected to avoid being drawn into public defence of rulings or criticism of gov
       • Restrictions on political activity
         • Judges not permitted to campaign on behalf of party or pressure group
       • Legal basis for judgements
         • Judges expected to offer explanation of how ruling is based in law
           • Less room for personal bias
       • High-level training
         • Regulated by Law Society
           • Promotion to high ranks usually reflects view that they're able to put personal bias aside

3. UK Supreme Court

   • Set up 2009 - Const. Reform Act 2005
     • Replaced Law Lords as highest court in land
   • Physically and institutionally separate from Parl
     • Separation of powers
       • Free from political pressure
   • 12 Judges
     • To qualify must have served 2yrs as senior judge or 15 as barrister/solicitor
     • Have tenure
     • Composition = criticised for lacking diversity
       • HOWEVER 2018 pres. was Lady Hale
   • Appointment Process
     • Designed to be non-political & based on merit
     • Vacancies filled by special selection commission
       • Committee made up of...
         • Pres & Deputy Pres of Court
         • Member each from
           • Judicial Appointments Commission
           • Judicial Appointments Board for Scotland
             • SHOWS: SCourt oversees all courts in UK
           • N.Ire Judicial Appointments Committee
       • Commission consults certain senior judges not seeing UKSC
         • Senior judge makes rec on merit alone
     • Lord Chancellor can accept or reject nominee but can't put forward their own
   • Main roles
     • Final court appeal for all UK civil & criminal cases
       • General public & issues of National importance
     • Enforces ECHR in UK, reduce number of UK cases heard in ECHR
     • Final court of appeals for some overseas territory & former colonies e.g. Jamaica
   • UKSC Key Cases
     • Al Rawi v Security Services (2011)
       • Key Features
         • In certain terror trials are UK security service allowed to give evidence in secret?
         • Should protecting national security beat long held legal principle of open justice?
         • A case concerning Human Rights (to fair trial) and extent of gov power to alter normal judicial procedure
       • Outcome & significance
         • Defeat for UK gov
           • Victory for supporters of open justice
         • Court believed even in srs cases both sides must hear and see all evidence put to judge
     • Trump Intl. Golf Club Limited v Scottish Ministers (2015)
       • Key features
         • Had Scot gov exceeded power in allowing wind turbine to be made near golf club owned by Trumps business?
         • Ultra vires case
       • Outcome
         • Court in fav of Scot gov
         • Scot gov hadn't exceeded power
     • Miller v Secretary of State for Exiting the European Union (2017)
       • Key features
         • Must gov get Parl approval to invoke Article 50 to leave EU following ref?
         • Case about constitutional matters
         • Must devolved assemblies be consulted about A50?
       • Outcome
         • Parl must be allowed a vote
           • Devolved don't need to be consulted
         • Reinforced principle of Parl Sovereignty
           • Both victory & defeat for gov
         • Not a pro-remain ruling by Court but an interpretation of constitution

4. Ultra Vires

   • Acting beyond powers
     • Beyond power of law & illegal
     • Ultra Vires acts must be reversed
   • Decision often made after judicial review
   • Judicial Review
     • Judges review legality of decision/action of public bodies
     • Challenges = to way decision was reached, not the morality of outcome

5. UKSC and Europe

   • Under HR Act 1998 UKSC = power decide whether action by public body or law breaches ECHR
     • If breach = found UKSC = declaration of incompatibility and action must be reversed
   • UKSC obliged to accept precedents of ECtHR but some cases have been sent back for reconsideration
     • E.g 2009 Horncastle case
   • Separate to ECHR UKSC must take EU law into account when hearing cases that concern European treaties
     • UKSC can sent cases to European Court of Justice for final verdict
   • Brexit only impacts UKSC and EU law, now UKSC and ECHR

6. Impact on Gov, legislature & policy making

   • UKSC acts as check & balance on gov & parl in regard to legislative and executive actions
   • Under HR Act 1998 gov bills must incl. statement saying minister agrees bill is compatible with HR Act or that it isn't but they're proceeding anyway
     • Makes gov and legislature more careful when drawing up bills
   • On rare occasions UKSC ignore ECHR rulings
     • E.g. 2005 Hirst v UK ECHR deemed blanket ban on prisoners voting violated HR but parl didnt change law
       • Links to franchise & suffrage

7. Importance & Diversity of Judiciary

   • Is the Judiciary too powerful?
     • YES
       • Unelected & hard to remove
       • HRA 1998 means judges can get involved with politics & clash with gov, undermines parl. sov & democracy
       • Judges make decisions that have have huge impact incl life & death
         • E.g. Great Ormond Street v Yates & Gard (2017) - Charlie Gard case
       • Judicial review means judges can force gov & public bodies to change policy
     • NO
       • Judges need to be independent to be impartial
       • Judges only interpret laws passed, parl chose to sign up to ECHR
       • Prevent arbitrary gov.
       • Judges are experienced legal professionals trained to be impartial, better suited to easily swayed politicians
   • Diversity
     • Evidence of lack of diversity
       • No Black or Asian judges in UKSC in 2018
         • 7% of all judges in 2017
       • All come from similar social background
         • 75% of 12 UKSC judges in mid 2018 = Oxbridge educated
       • Under-representation of women
         • mid 2018 UKSC = 25% women, 75% men
     • Does a lack of diversity matter?
       • YES
         • Judges don't reflect modern British society
           • May make it harder for them to understand cultural context of some cases
         • Little improvement in diversity in last decade e.g. UKSC
         • Reduces public trust in judiciary, leads to biased pro-establishment decisions
         • More input from directly elected reps in appointments would increase diversity
       • NO
         • Chosen for expertise, not to be representatives
         • Judges don't need to empathise, only apply law correctly
         • Diversity = growing low in hierarchy, will reach top eventually
         • Public would rather have judicial decisions in hands of professionals & no proof of establishment bias
         • Input from reps would lead to politicisation of judiciary
           • Destroys neutrality