organisation:

JUDICIAL INDEPENDENCE AND IMPARTIALITY:

• judges are free from govt interference.
• maintained via an independent appointment process and permanent job security for judges.
• salaries set by an independent body.
• judges are neutral/objective when making judgements and are not swayed by personal opinion or public pressure.
• ensured by professional training and considerable legal experience.

SEPARATION OF POWERS:

• separate, both physically and in terms of personnel, from parliament and govt.

ULTRA VIRES:

• everyone is subject to law of the land incl govt.
• if govts or other public bodies are deemed by the courts to have exceeded their powers, their actions are declared ultra vires - beyond the power of the law and therefore illegal.
• decision is made after process of judicial review.

JUDICIAL REVIEW:

• court proceedings where judges review the legality of a decision or action made by a public body incl the govt.
• any challenge is to the way a decision is made not the conclusion reached.

✅ judges are unelected and cannot be removed easily.
✅ HRA 1998 means judges get involved in politics and often clash with govt, undermining parliamentary sovereignty and democracy.
✅ decisions made can have huge impact - even over life and death incl cases involving assisted dying or switching off life-support machines.
✅ judicial review means judges can end up forcing govt depts and public bodies to change their policies.

❌ judges need to be independent of politicians in order to be impartial and fair to everyone.
❌ only interpret laws passed by parliament - parliament chose to sign up to ECHR and to pass HRA so could opt to reverse both.
❌ judges are experienced legal professionals who are properly trained in looking at complex cases impartially - they are better suited than politicians who may be swayed by public opinion and the media.

• courts make sure those in power abide by rules. this is a necessary check to avoid arbitrary govt.

appointment procedure:

• based on merit and experience.
• politicians have no real say in appts.
• since 2006, all judges below SC level have been appointed by independent Judicial Appointments Committee via an open and competitive application process.
• used to be appointed by Lord Chancellor - who now only has limited power of veto over JAC appointees.

✅ judges do not currently reflect modern british society.
✅ could make ti hard for judges to fully understand cultural context of some cases.
✅ little improvement of diversity in the last decade.
✅ reduces publics trust in the court and leads to biased 'pro-establishment' decisions.
✅ more input from democratically elected representatives in the appointments process would help.

❌ unlike MPs, judges are not representatives of the people but are chosen for professional expertise on merit.
❌ judges arent there to empathise but to apply law neutrally and professionally.
❌ diversity is growing lower down judicial hierarchy and changes at top can only come as talent pool broadens lower down. it will come eventually.
❌ no evidence of an establishment bias and public would rather have decisions in hands of best qualified.
❌ this could lead to a dangerous politicisation of the judiciary.

• set up in 2009 following 2005 Constitutional Reform Act.
• Replaced Law Lords as highest court.
• physically and institutionally separate from parliament.
• 12 judges.
• compulsory retirement age = 70.
• cannot be removed by ministers or parliament unless for gross misconduct.
• free of political pressure.

uksc and europe:

• under 1998 HRA, the UKSC has power to decide whether an action by a public body or a particular law is in breach of the ECHR.
• if it finds such a breach, it issues a 'declaration of incompatibility' - requires the action to be reversed.
• obliged to respect precedents of the ECtHR.
• HORNCASTLE CASE: concerned the use of statements from witnesses not present in court. ECtHR ruled that a person convicted on such evidence had been denied access to a fair trial but the UKSC disagreed and the court was sent back.
• this case influenced the ECtHR when it came to hear a similar case 2 years later - the UKSC is both influenced by and influences the ECtHR.
• separate to the ECHR, the UKSC must take EU law into account when hearing cases that concern European treaties the UK is signed up for.

appointment procedure:

• non-political, independent and based on merit alone.
• vacancies are filed by a special select commission.
• commission is made up of: president and deputy president of the court; a member each from the Judicial Appts Commission, the Judicial Appts Board for Scotland and the Northern Ireland Judicial Appts Commission.
• commission consults with senior judges, not wishing to be appointed, before putting forward a name selected on merit alone.
• Lord Chancellor can accept or reject the nomination but not put forward their own candidate.

outcome and significance:

• parliament must be allowed a vote on article 50.
• devolved assemblies did not need to be consulted.
• case reinforced principle of parliamentary sovereignty and the supremacy of westminster in such matters.
• not a pro-remain decision but about interpreting the british consitution.

outcome and significance:

• UKSC decided victims' human rights had been breached.
• if a police force conducts an investigation into a major crime which fails in a sufficiently serious way, it could be liable to human rights action brought by the victim.

key features:

• were the parents of a seriously ill baby (Charlie Gard) allowed to take him abroad for medical treatment?
• the removal was opposed by both Great Ormond Street Hospital and Charlie's independent guardian on the legal grounds it was not in his best interests.
• more about the legality of the procedures followed than medical ethics.

outcome and significance:

• court found against charlie's parents who were not allowed to take him to the usa.
• he died shortly afterwards when his life support was removed.
• case reaffirmed the principle that parents do not have the ultimate say on their childs care.
• although involving a matter of life and death, the case was not about morality or ethics but interpretation of the law and legal procedures.

acts as significant check and balance on govt and parliament in regard to both legislation and executive actions.

the UKSC may disagree with what is said and this makes govts more cautious when drawing up bills.

on occasions, the UK govt can choose to ignore the rulings of the ECtHR - in 2005 the EctHR ruled a blanket ban on denying all prisoners the vote was incompatible with the ECHR but parliament did not subsequently change the law.

sometimes the court can come close to overturning key aspects of govt policy.

• in 2015, the UKSC only narrowly - by a 3 to 2 margin - upheld the controversial cap on the total amount of benefits an out of work family can receive.