AQA A-level Politics

Chapter 4 The judiciary

Paper 1 Section A style questions
1 It would be sensible to devote at least a sentence at the start of your answer to the task of explaining
precisely what judicial independence is.
Your first factor could focus on the how the security of tenure and protected salary enjoyed by judges
allows them to operate without fear of being sacked or pay being docked for holding those in power to
account (AO1). It is extremely rare for a senior judge to be sacked for any reason, and unheard of for
overtly political reasons. Moreover, salaries are independently determined and administered away from
direct control by the Treasury.
Your second factor could be the way in which the growing separation of powers in the UK system and the
long-standing principle of sub judice affords judges ‘space’ in which to operate. The diminishing of the
role of Lord Chancellor, and the creation of a UK Supreme Court independent of the legislature has all
enhanced independence (AO1) even though parliament remains sovereign and the absence of a codified
constitution means that the government of the day could threaten judicial reform, as they did in the wake
of Supreme Court rulings over Brexit in 2019 (AO2). Sub judice rules mean that politicians and the media
should not comment publicly on ongoing legal proceedings.
For your third factor, you could highlight the importance of the Judicial Appointments Commission (JAC),
which was established under the Constitutional Reform Act 2005. The JAC was created as a means of
lending greater transparency and legitimacy to the process by which most senior judges are appointed, and
thereby removing any suggestion of political interference in top judicial appointments. You might add that
having invariably served a long apprenticeship, most senior judges view maintaining their independence as
an essential element of defending their professional integrity.
2 One paragraph could explain the concept of ultra vires, offering a brief definition of the term before
detailing how judges can use that power to rule a minister’s actions unlawful (AO1). You could then go
on to consider the limitations of such rulings, e.g. the fact that parliament can legislate retrospectively
to ‘right’ the ‘wrong’ and reassert the governments’ original position (AO2).
A second paragraph could focus on the way in which the UK Supreme Court has used things such as the
ECHR (as incorporated into UK law under the Human Rights Act (HRA) 1998) to rule against government
action, e.g. the Tigere Case. You could also mention the way in which the Court has made rulings against
the government under EU law in the past, e.g. Factortame (AO1). Again, you could then offer further
analysis by making reference to the way in which the completion of Brexit removed the UK’s legal
obligation to follow EU law. You could also refer to government suggestion that they might limit the scope
of the HRA or withdraw from the ECHR — or the fact that a ‘declaration of incompatibility’ does not force
change or compliance on the part of government (AO2).
Your third paragraph cold take a different tack, in noting that the growing status of judicial institutions
such as the Supreme Court has had an indirect influence on government, i.e. the knowledge that judges are
increasingly active and possessed of the power to block or impose limitations upon government policy that
is flawed or poorly framed means that government moderates its approach and removes elements of policy
it knows might end with an embarrassing ‘slap-down’ at the hands of senior judges (AO1).
3 The temptation in answering this question would be to focus on a single broad criticism of the
composition of the UK judiciary (specifically, the extent to which the judges are not socially
representative of the wider population) before focusing on three elements of that single criticism, e.g. a
lack of gender balance, a lack of ethnic minority representation, a narrow and elitist recruiting pool.

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While this could be seen as a valid approach, the danger is that you might not have enough to say
about each of these three aspects of social representation.
The alternative would be to adopt a more thematic approach when identifying possible criticisms.
o One paragraph could focus on the fact that the judiciary does not ‘look like’ the UK in terms of age
profile, gender or ethnicity.
o One paragraph could focus on the idea that the judiciary is elitist in terms of educational
backgrounds and the social class of senior judges.
o One paragraph could focus on accusations of politicisation.
If you adopt this approach then there is plenty of scope not only to set out the argument within each area
(AO1) but also to challenge and test it (AO2). For example, whereas you could use statistics to demonstrate
that the vast majority of senior judges are over 50, white and male (AO1), you could also make the point
that senior judges are recruited from a pool that is also unrepresentative of the wider population (AO2).
You might also question the inference that ‘old white men’ cannot fairly administer justice to all (AO2).
Paper 1 Section B style question
4 Although there is no real benefit in starting your response with an extended paragraph addressing the
provenance of the two articles, it is perhaps worth making some general introductory remarks
regarding the perspectives offered by and/or the status of the extracts in the question (AO3). Both
extracts are taken from well-regarded mainstream news sources: the first from a well-respected
broadsheet newspaper, the second from an online news source that was formerly a well-regarded
broadsheet newspaper. However, while both sources are free from obvious bias, and both focus on the
same UK Supreme Court decision over the prorogation of parliament, they offer distinctly different
perspectives on that decision.
The Financial Times article suggests that the decision in question was perhaps ‘the most important
constitutional decision for a generation’, so it is worth explaining the reasoning behind that view (AO1)
before going on to analyse whether this view is credible (AO2), both with reference to your own knowledge
and to the second extract (see below). Crucially, however, the first extract also asserts that this decision,
ground-breaking as it was, was not on a par with the US Supreme Court ruling that first established judicial
review on the other side of the Atlantic in 1803 (Marbury v Maddison). If you wanted to challenge that view
(AO2) you could make the point that the decision to block the prime minister’s exercise of a prerogative
power could be seen in that light. Moreover, the full significance of the Marbury v Maddison case was not
apparent in 1803. It was only considerably later that commentators came to see that case as the start of a
more significant development in the authority of the US Supreme Court — so it might be a mistake to rush
to judge the significance of this ruling (AO2).
The second article, from the Independent, echoes some of the content in the first, e.g. by acknowledging
that some saw the Court’s ruling as ‘epoch-making’. However, the opening two sentences suggest that the
author was shocked that the Court had taken this ‘political step’ and voided the prime minister’s exercise of
prerogative power in the way it had. This would suggest that the author of the second article sees the case
in question as being more than simply ‘the reassertion of constitutional principles [and] parliamentary
sovereignty’ that the first author portrayed it as.
Therefore, while both sources acknowledge that this was a landmark case, they offer a rather different
view, both of its long-term significance and its desirability. In developing that point, it would be helpful to
offer evidence (AO1) and analysis (AO2) that addresses the extent to which the case in question represents
part of a wider picture, i.e. of the Court growing in power. You should also make explicit reference to the
question of whether the Court has now become ‘too powerful’ and whether each source appears to
support or reject that view.
Paper 1 Section C style questions

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5 With these longer, more conventional 25-mark essays it is probably worth taking the time to provide a
brief introduction before getting into the body of your essay (AO3).
In your introduction, it would be worth noting that concern over the nature, scope and extent of judicial
power has been growing in recent years, and that the quotation offered in the title encapsulates the issue
that lies at the heart of such worries. The ‘unlelected politicians’ in the title are obviously judges, and you
should make that point explicitly, even if it seems rather obvious (AO3). The benches are the legal benches
of the courtroom, as opposed to the ‘frontbenches’ or ‘backbenches’ in the Commons or the Lords. You
might also want to unpick the work ‘politicians’ at this stage, i.e. explain what distinguishes what a
‘politician’ does from what a ‘judge’ might be expected to do. Part of any such explanation should be the
way in which people seek to distinguish between those who ‘make the law’ (politicians) from those that
‘adjudicate’ in disputes arising under it (judges) AO2.
In the first paragraph, you could draw a distinction between the lower courts, where judges are simply
hearing criminal and civil cases brought under the law, and the senior judiciary, where judges are more
commonly hearing cases on appeal, i.e. where there is some controversy over the meaning of, or
application of the law. At the very highest levels of the judiciary, such as the UK Supreme Court, judges are
often operating in areas where the law is patchy or unclear. In these cases, they seek to interpret what is
there and draw on existing legal precedent (case law) to establish new case law (AO1). In this sense, it
could be argued that the distinction between those who make the law and those who judge cases arising
under it is always a false one (AO2).
In the second paragraph, you could use the material in this chapter to demonstrate the ways in which
senior judges, particularly those in the Supreme Court, have become more active in recent years, for
example with reference to cases arising under EU law (pre-Brexit) or the ECHR, as incorporated into UK law
under the HRA (AO1). You could look at specific cases with a view to determining the extent to which such
judges could be seen as ‘making law’.
In the third paragraph, you could look at the way in which the creation of the UK Supreme Court under the
Constitutional Reform Act 2005 and its development, since it opened for business in Middlesex Guildhall in
October 2009, has seen the UK’s most senior judges cast in a more political light. Whereas the Law Lords
that they replaced could not really be considered ‘public figures’, the leading justices of the Supreme Court
and the cases that it hears have garnered far more media coverage (AO1). The focus on Baroness Hale, and
her spider brooch, as she delivered the Court’s unanimous ruling in the prorogation case, illustrated this
point perfectly. Some argue that the growing public profile of such judges also means that they have come
to be seen as political ‘players’, as opposed to simply the ‘umpires’. You could analyse and evaluate this
view (AO2).
6 As you near the end of Paper 1 you are presented with a choice between answering Q5 or opting
instead to tackle Q6. That being the case, it is worth saying that this Q6 is not one that you should be
tackling unless you have a very secure and detailed knowledge of the composition of the UK Supreme
Court. While it may be possible to craft a range of convincing responses to Q5, on the basis of the
knowledge you have at your disposal, it would be impossible to do a great deal in response to this
question without a very narrow and focused body of knowledge regarding the Court’s composition.
In your introduction, as we noted in response to Q5, it is worthwhile beginning your response with a brief
outline setting out the scope of the discussion and picking up on any cues in the title (AO3). Although the
quotation offered clearly implies that the second criticism of the Court’s composition (that it is ‘out of
touch with the population at large’) is a consequence of the first (that it is ‘socially unrepresentative’) the
key to answering the question is to explore and test each contention, before arriving at a conclusion as to
whether either or both are true and, if so, whether the two are necessarily linked.
This chapter includes a good deal of detail on the composition of the Supreme Court, both in tabular form
and in the main body text, e.g. on gender, age, and educational background (AO1). There is also a good deal

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of discussion relating to that material and whether or not it matters (AO2). The title links composition to
the UK population at large, so In the first paragraph it would obviously be helpful to consider this, while
recognising that no senior judiciary is likely to be entirely representative of the wider population, given the
various requirements for office (AO2).
The second clause is more difficult to test because you would need to have data relating to public attitudes
towards, and perceptions of, the Court in order to do it properly, and that would be the stuff of
undergraduate or post-graduate study, as opposed to A-level. What you can do in the second paragraph is
consider some of the cases you have studied, many of which are included in this chapter (AO1), and
consider whether or not the Court in those cases appeared to be in tune with, or defending the public
interest against government encroachment, or standing in the way of the democratic will and wishes of the
people (AO2). You might even question whether such justices should be answerable or beholden to the
wider population, or whether they should be left free to serve justice.
Your third paragraph could develop some of these themes by considering whether a Court that is not
socially representative of the population at large must necessarily be out of touch with it (AO2). This might
touch on some of the themes dealt with earlier in the chapter, such as the judicial independence, and the
training and professional integrity of these top UK justices (AO1). There is no intrinsic reason why those
currently serving on the Court, drawn as they are from relatively narrow social and educational circles,
should necessarily be incapable of delivering justice for the wider population (AO2). However, while it
could be argued that such appointments should be entirely on merit, even where that results in a Court
that is entirely socially unrepresentative, you could also state that the public perception of the Court and
public confidence in the fair and consistent administration of justice is better served by a senior judiciary
that more visibly ‘looks like the UK’ (AO3).

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