The Judiciary

• Structure of UK judiciary

  Judiciary isnt a single entitity, England and Wales operate on one system whilst Scotland and Northern Ireland operate on a different system
• Criminal Law


  Law concerned with conduct of citizens with regards to society, including theft, assault, muder, etc
• Civil Law


  Law concerned with relationships between individuals, groups or businesses, including wills or contracts or debt repayment
• Criminal Cases


  All criminal cases start in a magistrates court, heard by 2 or 3 magistrates or a district judge

  • There is no jury in a magistrates court
  • Magistrate: unpaid member of the public

  Magistrate courts handle 'summary' offences (self-evident), including minor criminal damage and motor offences

  • Magistrate courts hear 98% of criminal cases
• Criminal Cases (2)


  Magistrates courts always pass indictable offences to the Crown Court, including cases of rape, murder and robbery

  • Crown Courts also deal with appeals from the Magistrates' court
  • Crown courts have a jury usually and a judge
  • Appeals from crown court go to the High Court
• Civil Cases

  These are mainly dealt with in County Courts, or in serious cases the High Court and their jurisdiction covers a wide rage

  • Damaged goods or recovery of debt to large claims between multi-national companies

  Judges in civil jurisdiction do not have the power to imprison a losing party, they can award financial damages depending on circumstance
• The Court of Appeal


  This is the highest court within the Senior Courts of England and Wales, and deals only with appeals from other courts or tribunals

  • Two divisions, criminal and civil, based in the Royal Courts of Justice in London
  • 38 Judges as of 2023
• The Supreme Court UK


  Supreme court acts as/is responsible for:

  • Final court of appeal in Wales, England and Northern Ireland
  • hear appeals of public importance on points of law
  • Hear appeals from civil case in England, Wales and Northern Ireland

  Decisions have wide implications as they set or alter legal precedent
• Origins of Supreme Court

  Before Oct 2009 the highest court of appeal was the 12 Law Lords who sat in the Appellate Committee of the House of Lords

  Caused concerns

  • Lack of separation of powers, law lords could make law and interpret it
  • appointments system was secretive, elitism and cronyism
  • role of law lords was confusing, HoL effectively a court of appeal as well as a part of the legislature

  Concerns addressed in the Constitutional Reform Act 2005 creating the new supreme court
• Supreme Courts Appointments Process

  More open than it had been previously, a temp appointment commission is formed to consider a replacement

  On the Commission sits

  • president of the supreme court
  • a senior judge nominated by the president
  • one member from each judicial appointments commission including devolved commissions
• Supreme courts appointments proces (2)

  • Selection must be on merit
  • Candidates must have 15 years of practicing law experience and/or hold a high judicial office for 2 years
  • a candidate cannot be selected if they are in the commission themselves
  • they must have extensive knowledge from a wide field of law
  • PM and queen confirm selection
• Power of the Supreme Court


  UK Supreme court is weaker than US Supreme Court as a result of the UKs uncodified constitution

  Uk Supreme Court has influence via

  • Judicial Review
  • The Human Rights Act
  • Formerly EU Law
• Judicial Review


  A type of court proceeding in which a judge reviews the lawfulness of a decision made by a public body (gov dept, local councils, immigration authorities etc)

  • Judicial reviews challenge the way in which a decision has been made as opposed to its conclusion reached
  • Courts can be used to challenge action taken by public bodies
• Judicial Review (2)


  It is an important way in which judges can check the powers of public bodies and the government

  • w/o it there is effectively an 'elected dictatorship' and no one to hold the government accountable to law

  Judicial review is a controversial power as judges, whom are unelected, have the power to overrule politicians, elected representatives of the people
• Judicial Review - Ultra Vires

  The courts can rule that the government has acted ultra vires, beyond powers given to them by law

  • ruling that they have acted unlawfully
  • this is how the government can held accountable by the judiciary
• Judicial Review - examples

  Gina Miller, businesswoman who twice launches legal challenges against the government and won

  • Jan 2017 - Supreme Court ruled that an Act of Parliament was required to launch article 50; the process of Brexit, instead of the royal prerogative. This is because it would withdraw rights given under an act of parliament
  • Sept 2019 - The PMs advice to exercise the prerogative power to prorogue parliament was declared unlawful
  • Prevented parliament from exercising its function and as a result decided unanimously by 11 judges, the prorogation was void
• The Human Rights Act 1998


  Completely seperate from the EU and as such Britain is still a signatory to it, additionally it is not superior to statue law

  • The Supreme Court can declare that a piece of legislation is incompatible with the convention but it cannot strike down legislation under it and parliament isn't obligated to change it
  • That being said a decleration under the HRA has persuasive authority and can be difficult for a government to ignore
• EU Law (not applicable to UK)


  Previously Eu law held precedent over UK law in cases where there was conflict

  • A precedent was set by the Factortame case 1990 in which UK courts could suspend UK statue law in situations where conflict existed
  • After Brexit this is no longer the case and eu law doesn't apply except in NI regarding trade
  • Brexit has in a way increased the status of the Supreme Court as it is no longer subject to rulings from the ECJ and has reduced its case load as it doesn't hear EU law cases anymore
• Judicial Independence

  • Provides a check on the government with no political bias
  • Judges cannot collude with the government
  • Ensure a fair trial for everyone
• Judicial Independence


  Refers to the judiciary being free from government influence and is extended to any partisan influence also

  • Judges should be free to make rulings without fear of personal consequence
• History of monarchical interference in the judiciary

  power of the monarch has diminished over time as parliamentary supremacy developed

  • King William III approved Act of Settlement 1701 which established tenure for judges unless parliament removed them
  • essentially creating concept of judicial independence
• How is Judicial Independence maintained?

  Separation of Powers

  • Since 2005 Constitutional Reform Act there has been a greater separation of powers
  • Final court of appeal is now Supreme Courts and Lord Chancellor is no longer head of the Judiciary
  • Lord Chief Justice is now head of Jusiciary, nominated by gov and appointed by queen
  • Lord Chancellor has to swear an oath to defend the independence of the judiciary
• How is Judicial Independence maintained?

  Security of Tenure

  • Judges cant be dismissed on the basis of decisions they make , can only be dismissed for improper conduct
  • Jobs are not linked to government changes
  • free to make decisions even if it goes against government
  • Only limitation is that they must retire by 75
• How is Judicial Independence maintained?

  Salary

  • Their pay isn't subject to annual review by the HoC and is decided by an independent pay review body
  • Judges salary isn't reduced if they make controversial decisions
  • Less easy to bribe a judge as they have a high salary
• How is Judicial Independence maintained?

  Freedom from criticism/contempt of court

  • Convention prevents MPs and Peers from criticising court rulings and judicial decisions in parliament
  • if gov attempts to interfere with a court case it can be found in contempt of court and legal action can follow
  • In practice these rules are sometimes broken - eg. super injunction case
• How is Judicial Independence maintained?

  Independent Legal Profession

  • Standards are regulated by Law Society and not the government
  • Judges are appointed from the ranks of lawyers who belong to an independent legal profession
• How is Judicial Independence maintained?

  Judicial criticism of government

  • Senior judges have criticised the government, ie, Lord Woolf, former Chief Justice, had a history of being outspoken
  • In 2004 he attacked the governments plans for constitutional reform
• How is Judicial Independence maintained?

  Judicial appointments

  • The appointments system was reformed under the Constitutional reform act 2005
  • Most judges are now appointed by a judicial appointments commission which is politically independent
  • Reducing political influence over the appointment of the judiciary
• Threats to judicial independence

  PMs role in appointments

  • PM has final veto over such appointments even though appointment of senior judges is handled by the Independent Judicial Appointments Commission
• Threats to Judicial Independence

  Political Dialogue

  • There has been a tendency for politicians to enter into political dialogue with judges over sentencing issues and human righst
  • Can result in indirect influence
  • Eg. 2003 David Blunkett condemned release of 9 Afghan Hijackers
• Threats to Judicial Independence

  The Justice Ministry

  • Government retains control over the legal system via the justice ministry
  • does not constitute direct control but it does suggest interference
• Threats to Judicial Independence

  Cross over of elites

  • Many top politicians and senior figures in the judiciary were educated in the same establishment, (1999- 89% of Supreme Court, Oxbridge)
  • As such they know each other and support each others views
  • Evidence than in the 80s the judiciary were adopting the same political stance as government on new trade union judgements
• Threats to Judicial Independence

  Parliamentary Sovereignty

  • Law and politics overlap and connect given that parliament has legal sovereignty
  • Judiciaries role is to uphold and interpret Parliaments laws
• Judicial Neutrality


  Judicial Neutrality is the idea that judges should be free from any political or other bias

  • Rule of law states everyone should be treated equally so its important that judges are unbiased
  • Concerns regarding the narrow social background of very senior judges
  • tend to be higher class, oxbridge educated, generally more conservative
• Judicial Neutrality -The Griffith Theory

  John Griffith suggested that the social background of judges would inevitably influence the decisions they make

  • Also argued that all lawyers were naturally inclined to favour the interests of the state over that of individuals
  • During 80s judges in trade union cases tended to leave local government judges deciding in favour of the government
  • Very conservative and narrow social base and as such judiciary isn't neutral
• Arguments that Judicial Neutrality exists

  There are and have been judges that are seen as 'liberal' Lords Woolf, Hoffman and Bingham

  • HRA provided the judiciary with more force to use against the state in civil cases
  • The belmarsh case is an example of the judiciary prioritising the individual
  • ex incl. Home Secretary Michael Howard lost many cases over prison reviews and human rights abuses
  • Large number of cases in which the individual has been favoured over the state
• Judges do maintain neutrality


  Judges are bound by rules of interpretation and they would be in trouble if they departed from these too much

  • also strict court conduct rules
  • pride in neutrality and trained to maintain it
  • Background should not necessarily affect decisions
  • Cannot openly engage in political activitu
  • Judges have been quick to criticise government for threatening civil liberties
  • article 50, suspension of parliament 2019
• Judges do maintain neutrality


  Judiciary favouring the state no longer seems true

  • 2010 - Supreme Court rules that the gov no longer have the legal power to freeze the assets of terrorists