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The Supreme Court - NotesThe origins and functions of the Supreme Court
Why was the UK Supreme Court established?
Before the UK Supreme Court began its work in 2009 the highest Court of Appeal comprised
12 law Lords who sat in the elite committee in the House of Lords
The UK Supreme Court was established under the constitution Reform Act 2005 in response
to a number of longstanding concerns
- Concerns over the incomplete separation of powers
- Criticisms over the opaque system under which senior judges, such as the law Lords
were appointed
- Confusion over the work of the law Lords - specifically a widespread failure to
understand the distinction between the HOL’s legislative and judicial functions
What functions does the Supreme Court perform
Under the CRA 2005, this new Supreme Court took on most of those judicial rolls previously
performed by the law Lords
- To act as the final Court of Appeal in England, Wales, and Northern Ireland, and hear
appeals from civil cases in Scotland
- To clarify the meaning of the law, by hearing appeals in cases where there is uncertainty
The appointment process and the composition of the court
How are The Supreme Court justices appointed
Appointments to oppositions in the senior judiciary which traditionally made by the
monarch on the advice of the pm and the Lord chancellor
Lord chancellor would consult existing senior judges through a process known as secret
soundings
- The resulting lack of transparency in appointments led to accusations of elitism
- It was said that this system lacked transparency, undermined the separation of powers,
and resulted in a senior judiciary drawn almost exclusively from a very narrow social
circle
- Public school and Oxbridge educated, white, male and beyond middle age
- Such criticisms were at the heart of the 2005 CRA
In order to be considered for appointment as a justice of the Supreme Court today,
candidates must have either held high judicial office for at least two years, or being a
qualified practitioner for a period of 15 years
- Vacancies in the UK Supreme Court I filled by an ad hoc selection Commission as
opposed to the JAC which deals with all other appointments to the senior judiciary
, Key doctrine and principles that underpin the work of the Supreme Court
The rule of law
Rule of law is a key doctrine of the UK constitution under which justice is granted to all
A. V. Dicey saw the rule of law as one of the twin pillars of the constitution, the other being
parliamentary sovereignty
Three main strands of the rule of law
No one can be punished without trial
- This principle makes good sense in theory, but it is not always maintained in practise
- For example, terrorist suspects have been subject to a range of punishment without trial
under measures passed since 2001 including indefinite detention and the freezing of
their assets
No one is above the law and are all subject to the same justice
- This would appear to be a principle that would hold true in all liberal democracies, but
they have always been those who effectively above the law in the UK, including the
monarch, foreign ambassadors an MP’s
- MPs even tried to use parliamentary privilege as a way of ending legal proceedings taken
against them over their expenses during the 2009 expenses scandal
The general principles of the constitution result from the judge’s decisions rather than
from parliamentary statue
- While the decision of judges certainly has a part to play in defining the UK's
constitutional arrangements, parliament remains sovereign in statute law Reigns
Supreme
- Any legal precedent can be overturned by the means of a simple act of parliament
Judicial independence and judicial neutrality
Rule of law clearly demands that judges at all levels of the UK judiciary should operate with a
high level of independence and dispense justice with a degree of neutrality
Absence of judicial independence is a threat to judicial neutrality because the impartiality of
judges is compromised in their subject to external control
Judicial independence does not guarantee judicial neutrality because judges may still allow
their personal views to influence the way they administer justice
How is judicial independence maintained
Security of tenure enjoyed by judges
- Judges are appointed for an open-ended term, limited only by the requirement that they
must retire by the age of 75
- Politicians cannot seek to bring influence to bear by threatening to sack or suspend
them
Guaranteed salaries paid from the consolidated fund
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