26 judgments interpreting, applying, or limiting the provisions of this Act. Sorted by court tier then reverse-chronologically.
The Supreme Court created by section 23 uses the procedural rules made under this Act to decide who hears appeals in family deprivation-of-liberty cases. Habeas corpus remains available to challenge a child's detention.
The Supreme Court established by section 23 CRA 2005, exercising its appellate jurisdiction, treats the rules made under Schedule 1 to the 2005 Act (here the Family Court (Composition and Distribution of Business) Rules 2014, promulgated by virtue of section 31D of the Matrimonial and Family Proceedings Act 1984) as the procedural anchor that allocates an appeal in family-court deprivation-of-liberty proceedings to a judge of circuit-judge level sitting in the Family Court.
Holding. Habeas corpus is in principle available to a child detained pursuant to a deprivation-of-liberty order; the proper appellate route runs through the Family Court rule-making machinery established under Schedule 1 to the CRA 2005.
Because section 3(1) guarantees Scottish judges total independence from government, the Crown is not legally on the hook for what a sheriff does in court. Judges are not employees of ministers in any meaningful sense.
The principle of judicial independence enshrined for Scotland as well as for England and Wales by section 3(1) CRA 2005 — mirrored in Scotland by section 1 of the Judiciary and Courts (Scotland) Act 2008 — means a sheriff is constitutionally free of any government control in the performance of judicial functions, and that absence of control is decisive against the proposition that the relationship between a sheriff and the Scottish Government is akin to employment for vicarious-liability purposes.
Holding. The Crown is not vicariously liable in delict for the acts of a Scottish sheriff exercising judicial functions: stage 1 of the vicarious-liability test is not met because, as the section 3(1) CRA 2005 guarantee demonstrates, the relationship is not akin to employment.
Because section 38 lets the Supreme Court sit in panels, one panel can hear appeals from another. So if the Supreme Court itself finds someone in contempt of court, that person still has a right to appeal — within the same court.
Section 38(1), (4) and (8)(a) — governing how panels of the Supreme Court are constituted, including by judges of equivalent seniority — demonstrate that it is not a conceptual impossibility for one panel of the Supreme Court to hear an appeal from another, so the right of appeal in contempt cases under section 13 of the Administration of Justice Act 1960 can be read as extending to appeals against findings of contempt by a first-instance panel of the Supreme Court itself.
Holding. The Supreme Court has jurisdiction to hear an appeal from one panel of its justices, exercising its original contempt jurisdiction, to another panel: section 13 of the Administration of Justice Act 1960 must be construed, against the background of section 38 of the CRA 2005, as conferring such a right of appeal.
Section 137 updated Northern Ireland's appeal routes so cases now go to the Supreme Court rather than the House of Lords, but the scope of those rights stayed the same. So judicial review of parole referrals does not count as a criminal cause.
The Northern Ireland appellate framework — section 41(1) of the Judicature (Northern Ireland) Act 1978 for criminal causes or matters, and Part II of the Criminal Appeal (Northern Ireland) Act 1980 as amended by the CRA 2005 — continues to operate after the 2005 reforms, with appeals to the Supreme Court substituted for appeals to the House of Lords but the substantive scope of the right of appeal preserved.
Holding. Judicial review proceedings challenging the Northern Ireland Department of Justice's referral of a life-sentence prisoner to the Parole Commissioners are not a "criminal cause or matter" within section 41(1) of the 1978 Act, so the Supreme Court has no jurisdiction; the appeal lies instead to the Court of Appeal in Northern Ireland.
Section 40(5) lets the Supreme Court deal with related legal issues that arise during an appeal. So once a case is properly before it, the Court can resolve overlapping discrimination questions in the round, not piecemeal.
Section 40(5)'s power to determine any question necessary for doing justice in an appeal under any enactment is in principle available to entertain related grounds (here, alleged discrimination on grounds of sexual orientation under the SORs) once a right of appeal has been established on a different but factually-overlapping ground (here, discrimination on grounds of religious belief or political opinion under FETO), although the court ultimately rested its jurisdiction on the Attorney General's reference rather than on section 40(5).
Holding. The Supreme Court had jurisdiction to determine the SORs issue in the appeal; on the merits, the bakery's refusal to bake a cake bearing a pro-same-sex-marriage message was not direct discrimination on grounds of sexual orientation, religious belief or political opinion under the Northern Ireland legislation.
Drawing on the section 40 reasoning about closed hearings, the Crown Court can also hold confidential hearings when reviewing search warrants — but only to the same extent the magistrates' court could lawfully have done.
The reasoning by which Bank Mellat (No 1) derived an implicit closed-material-procedure power on appeal from section 40(2) and (5) CRA 2005 supplies the analogical framework for asking whether the Crown Court, exercising the role of a hypothetical magistrates' court under section 59 CJPA 2001, must be able to operate the same closed procedure as the magistrates' court could and would have done.
Holding. By analogy with the section 40 CRA 2005 reasoning in Bank Mellat (No 1), the Crown Court has an implicit power to conduct a closed material procedure when reviewing the lawfulness of search warrants under section 59 CJPA 2001 to the extent the magistrates' court could lawfully have done so.
The Supreme Court's appeal jurisdiction under section 40(2) is not unlimited. Other laws — including directly applicable EU rules on international child abduction — can lawfully block a further appeal to the apex court.
The Supreme Court's appellate jurisdiction under section 40(2) CRA 2005 is expressly subject by section 40(6) to enactments restricting appeals; directly applicable EU instruments — here BIIR Article 33(5) coupled with the United Kingdom's notification under that article — count as such an "enactment" by virtue of section 2(2) ECA 1972, and so can curtail the ordinary Supreme Court appeal route in international child-abduction cases.
Holding. The Supreme Court has no jurisdiction to entertain a further appeal under section 40(2) CRA 2005 in BIIR proceedings concerning the return of an abducted child to Romania, because the BIIR scheme (read with the UK's Article 68 notification) operates as an "enactment restricting such an appeal" within section 40(6).
Supreme Court decisions bind every court below it. The Privy Council normally does not, but where its enlarged panel is expressly invited to decide an English point and says an earlier ruling was wrong, lower courts may follow it.
Decisions of the Supreme Court bind all courts below as the apex of the unified judicial system created by the 2005 Act; the Judicial Committee of the Privy Council is not normally binding on English and Welsh courts, but where it is expressly invited to do so and a panel of five or more justices indicates that an earlier decision of the Supreme Court, House of Lords or Court of Appeal of England and Wales is wrong, judges in this jurisdiction may treat the Privy Council decision as effectively overruling that earlier authority.
Holding. Although the Judicial Committee of the Privy Council is not strictly a court of the United Kingdom and is not normally binding on English and Welsh courts, an enlarged Privy Council panel may, when expressly invited and when it so chooses, direct that its decision be treated as overruling a prior English authority within the unified apex established by the CRA 2005.
Section 40(1) carries over old Scottish appeal rights into the new Supreme Court. Even a Scottish court order that does not explain its legal reasoning still counts as a judgment you can appeal — though here the appellant could not afford counsel.
Section 40(3) CRA 2005, read with the 2009 commencement order, provides that an appeal lies to the Supreme Court from any order or judgment of the Court of Session if an appeal lay from that court to the House of Lords immediately before 1 October 2009; the 2005 Act thereby imports the pre-existing Scottish appellate competences (governed by section 40 of the Court of Session Act 1988) into the Supreme Court's jurisdiction.
Holding. An interlocutor of the Inner House dismissing a stated case without expressing an opinion on the questions of law is a "judgment" within section 40(1)(a) of the Court of Session Act 1988 against which an appeal lies to the Supreme Court without leave; but on the facts Apollo had no funds to pay counsel and could not present the appeal.
Section 40 gives the Supreme Court power to do justice in any appeal. In rare national-security cases where lower courts lawfully heard secret evidence, the Supreme Court can hold the same kind of closed hearing on appeal.
Section 40(2) confers on the Supreme Court the right to hear an appeal against "any order or judgment" of the Court of Appeal, and section 40(5) gives it power to determine any question necessary for doing justice in an appeal under any enactment; read together, those provisions imply a power — in the narrow context of statutes that authorise closed material procedures below — for the Supreme Court itself to conduct a closed material procedure on appeal.
Holding. By a 5:4 majority, the Supreme Court has an implicit statutory power under section 40(2) and (5) CRA 2005 to adopt a closed material procedure on appeal in cases (such as financial-restrictions proceedings under Part 6 of the Counter-Terrorism Act 2008) where the courts below have lawfully done so.
Section 40(3) preserves the unusual Scottish privilege of being able to appeal to the Supreme Court without first asking permission. With that right comes a professional duty on counsel never to certify an unreasonable appeal.
Section 40(3) preserves the historic Scottish right of appeal without leave: subject to specific restrictive statutes, an appeal against a judgment on the whole merits of a cause lies from the Inner House of the Court of Session to the Supreme Court without leave — a privilege not enjoyed by litigants in any other part of the United Kingdom — and counsel certifying that an appeal is reasonable bear a professional responsibility not to abuse it.
Holding. The Supreme Court has jurisdiction under section 40(3) CRA 2005 to entertain a Scottish appeal without leave; on the merits, the Inner House's rejection of the local-planning challenge was upheld, but the Court emphasised the corresponding professional duty on counsel only to certify reasonable appeals.
Courts will refuse to enforce any law, even one made by a devolved parliament, that tries to abolish judicial review or shut citizens out of court. Section 1 treats the rule of law as the ultimate constitutional safeguard.
Acts of the Scottish Parliament are amenable to common-law review at the suit of the rule of law — "the ultimate controlling factor on which our constitution is based" — to prevent any abolition of judicial review or other extreme legislative attack on access to the courts; the Supreme Court's competence to review devolved legislation under Schedule 6 to the Scotland Act 1998 (as amended by paragraph 96 of Schedule 9 to the CRA 2005) presupposes that constitutional principle.
Holding. Acts of the Scottish Parliament are not subject to common-law review on Wednesbury irrationality or arbitrariness grounds, but the courts retain a residual rule-of-law jurisdiction to refuse to recognise legislation that would abolish judicial review or destroy the rule of law.
The rule of law guarantee in section 1 means ordinary courts can still police tribunals. Even when Parliament builds a new tribunal system, the High Court can review unfair or unlawful tribunal decisions where really important issues arise.
The scope of judicial review is an artefact of the common law whose object is to maintain the rule of law — to ensure that decisions are taken according to law within the bounds of practical possibility; the integrated tribunal structure built on the CRA 2005 and the Tribunals, Courts and Enforcement Act 2007 redistributes adjudicative functions but does not displace the High Court's constitutional supervisory role recognised by section 1.
Holding. Unappealable decisions of the Upper Tribunal are amenable to judicial review by the High Court, but only on the proportionate "second-tier appeals" criteria — an important point of principle or some other compelling reason — because that is what the rule of law demands of supervisory review in the new integrated tribunal system.
The confidentiality rules on judicial appointments and discipline must not block information needed to apply section 108 fairly. The Judicial Appointments Commission can put negative consultation comments to a candidate without prior consent.
The confidentiality regime in section 139 must be read so as not to frustrate the disclosure of information that is necessary for the exercise of the Lord Chancellor's and Lady Chief Justice's disciplinary functions under section 108 (or, equally, the JAC's selection functions under section 88); the carve-outs in section 139(4)(b) and (d) are not materially qualified by the consent requirement in section 139(5).
Holding. The JAC's process of "sub-consultation" — in which a statutory consultee gathers comments from third parties — is lawful under section 88(1) CRA 2005, and the JAC may, where necessary, put the gist of negative consultation material to a candidate under section 139(4)(b) without first obtaining the consultee's consent.
The Lord Chancellor's duty to defend judicial independence does not stop the government settling or contesting human rights damages claims about judicial acts. Defending such cases on legal advice is not an attack on judges.
The Lord Chancellor's statutory commitment under section 1 to defend judicial independence and uphold the rule of law does not preclude him from settling — or defending on legal advice — a damages claim under section 9(3) HRA 1998 in respect of a judicial act; doing so does not undermine judicial independence, particularly where the court that made the impugned order has already found it to be of no effect.
Holding. The "constitutional quandary" said to face the Lord Chancellor — of having either to defend judicial acts to the utmost or to settle and so condemn a judge — is not real; freestanding Part 7 proceedings under section 9(3) HRA 1998 are not an abusive collateral attack where the impugned order has already been treated as ineffective by the court that made it.
Section 115 lets the Lord Chief Justice make formal rules for investigating complaints against judges. That ready-made statutory complaints system is one reason judges have no need for, and do not have, an employment contract.
Section 115, read with section 108, supplies the rule-making power under which the Lord Chief Justice (with the Lord Chancellor's agreement) prescribes the procedures for investigating allegations of misconduct against judicial office-holders — currently the Judicial Discipline (Prescribed Procedures) Regulations 2014; that statutory disciplinary architecture, together with the section 3(1) guarantee, displaces any need for a contractual employment route for judicial complaints.
Holding. The existence of a statutory disciplinary regime under sections 108/115 CRA 2005, with the safeguard of the JCIO and the Ombudsman, is part of the constitutional framework that explains why a district judge does not need (and does not have) a contract of employment with the Lord Chancellor.
Cuts to legal aid for prisoners do not automatically breach section 1's rule of law guarantee. Courts only intervene if the whole system becomes fundamentally unfair, not just because some individuals struggle to get help.
Section 1 preserves the Lord Chancellor's "existing constitutional role" in relation to the "existing constitutional principle of the rule of law"; that, with Lord Bingham's principle that adjudicative procedures provided by the state must be fair, supplies the constitutional frame against which the LASPO legal-aid scope decision for prison-law cases must be judged.
Holding. The Lord Chancellor's removal of prison-law cases from the scope of criminal legal aid did not result in an inherently or systemically unfair decision-making system, applying the high "systemic unfairness" threshold informed by section 1's rule-of-law guarantee.
Schemes that ask judges to assess advocates' performance do not breach judicial independence. Section 3's protection is robust enough that minor administrative arrangements pose no real threat to how judges decide cases.
Judicial independence is a core constitutional value governed (among other things) by the Constitutional Reform Act 2005 and reinforced by the judicial oath and the Guide to Judicial Conduct; a regulatory scheme that requires judges to assess advocates' competence does not threaten that statutory independence unless it materially compromises judicial decision-making.
Holding. The Legal Services Board's approval of the Quality Assurance Scheme for Advocates was lawful: the perceived risk to judicial independence from judges grading criminal advocates was rationally assessed as very low and adequately mitigated by the CRA 2005 safeguards and related professional protections.
The word misconduct in section 108 must be read narrowly so as not to threaten judicial independence. Complaints about how a judge handled a case, rather than personal wrongdoing, will properly be filtered out without investigation.
Sections 108 and 115 of the 2005 Act provide, respectively, the power to impose disciplinary measures on judicial officeholders and the power to make procedural regulations; the term "misconduct" within that disciplinary framework must be construed subject to the cardinal principle that a judge's continued independence be guaranteed by the duties in section 3(1) and (6), so as to distinguish judicial decisions and case management from personal conduct.
Holding. The JCIO was entitled to reject a complaint about a Family Court judge under Rule 8(c) of the Judicial Conduct Rules 2023 on the ground that the complaint, properly analysed, related to the judge's case management rather than personal misconduct; the JACO's confirmation of that approach under section 101 was likewise lawful.
Disciplinary powers over judges under section 108 cannot be used to second-guess how a judge ran a case. Only personal misconduct counts; firm or even mistaken case management is part of independent judging, not a complaint matter.
Disciplinary powers over judicial officeholders rest with the Lord Chancellor under Part 4 Chapter 3 — in particular section 108(1)–(7) — exercisable only once the prescribed procedures have been followed; the term "misconduct" must be read within that framework and subject to the overarching duty in section 3(1) and (6) to safeguard the continued independence of the judiciary, so that judicial decisions and case management absent personal misconduct fall outside disciplinary scope.
Holding. The JCIO's rejection of complaints about a judge's robust case management, on the basis that they did not amount to misconduct within the section 108 framework as glossed by Dove J in Gregory, was lawful; the Court of Appeal's criticism of the procedure adopted was a legal finding about case management, not a personal-conduct complaint.
The Lord Chancellor's solemn oath under section 17 to uphold the rule of law and defend judicial independence does not stop him from defending human rights damages claims in court. His duties co-exist with ordinary litigation.
The section 17 oath — by which the Lord Chancellor swears to respect the rule of law, defend the independence of the judiciary and discharge the duty to provide resources for the efficient and effective support of the courts — is read with sections 1 and 3 in defining the office's constitutional obligations when the Lord Chancellor is sued under section 9(3) HRA 1998 in respect of a judicial act.
Holding. The section 17 oath does not impose a self-denying ordinance preventing the Lord Chancellor from defending HRA 1998 damages claims arising from judicial acts; the constitutional duties to uphold the rule of law and judicial independence are compatible with ordinary litigation in such cases.
You cannot sue the Lord Chancellor or Ministry of Justice for damages just because you lost your case or feel the courts treated you unfairly. Section 1 creates no personal cause of action; appeal or judicial review is your route.
The 2005 Act — including the section 1 rule-of-law preservation and the Lord Chancellor's oath — created no statutory duty enforceable by an individual citizen as a private-law cause of action in damages against the Lord Chancellor or Ministry of Justice; the remedy for an unlawful court decision is appeal or judicial review, not a freestanding tort claim against the Executive.
Holding. A litigant who lost in divorce proceedings had no real prospect of suing the Lord Chancellor in negligence or breach of statutory duty under the CRA 2005 for the alleged failure of the family courts and legal profession to apply the law fairly; the claim was struck out as disclosing no actionable cause of action.
The Ombudsman set up by section 62 only checks whether the right procedures were followed when judicial conduct complaints are handled. It cannot reopen the merits of a complaint or substitute its own view of the judge's behaviour.
The Judicial Appointments and Conduct Ombudsman established by section 62, exercising the review function in sections 110–112, is confined to reviewing whether the prescribed procedures were followed and whether there has been maladministration; section 110(6) expressly prohibits the Ombudsman from reviewing the merits of the underlying JCIO decision or substituting his own decision.
Holding. Permission to apply for judicial review of the Ombudsman's refusal to uphold a complaint about the JCIO's handling of a misconduct complaint against a Lord Justice of Appeal is refused: mere disagreement with the JCIO's rule-8 rejection on the merits is not a "failure to comply with the prescribed procedures" reviewable by the Ombudsman.
The government is not normally liable for things judges do, because that would compromise judicial independence under section 3. Only very clear statutory wording, like the Human Rights Act, can override this protection.
Holding the Crown vicariously liable for judicial acts would infringe the separation of powers and the principle of judicial independence which the Lord Chancellor has a statutory duty under section 3(1) to uphold; only clear statutory words can dislodge the general rule against such vicarious liability, and section 9(3) HRA 1998 satisfies that requirement only for a freestanding Article 5(5) damages claim.
Holding. The Lord Chancellor is not vicariously liable for an Article 5(5) breach committed by a High Court judge in making an out-of-hours deprivation-of-liberty order; the claimant's remedy lay in appeal, not in seeking a declaration from a court of co-ordinate jurisdiction.
Tribunal rules that let evidence be hidden from a party must still be applied fairly. Section 1 means judges must read such rules narrowly so they never deny a person the basic fairness the rule of law demands.
Section 1 makes the constitutional rule of law a continuing fundamental principle that the 2005 Act does not adversely affect; an immigration tribunal rule allowing material to be withheld from an appellant must be construed so that judges, exercising their duty to act fairly, will not deploy it in a way that infringes the irreducible minimum of fairness which the rule of law requires.
Holding. Rule 13 of the First-tier Tribunal (Immigration and Asylum Chamber) Rules 2014 is not systemically unfair on its face: properly applied, having regard to the section 1 rule-of-law principle and the overriding objective, it will not produce a closed material procedure incompatible with common-law fairness.
Parliament cannot pass a retrospective law just to wipe out a citizen's existing court case against the government. Section 1's rule of law guarantee, alongside the right to a fair hearing, forbids that kind of legislative ambush.
The constitutional principle of the rule of law expressly recognised in section 1 requires Parliament and the Executive to respect the separation of powers and the principle of legality, so retrospective legislation designed to extinguish a citizen's existing claim against the Executive in pending litigation will offend section 1 — and Article 6 ECHR — absent compelling public-interest reasons.
Holding. The Jobseekers (Back to Work Schemes) Act 2013, which retrospectively validated unlawful benefit sanctions in proceedings still pending before the Supreme Court, was incompatible with Article 6 ECHR; a declaration of incompatibility was granted, with section 1 CRA 2005 deployed as the domestic constitutional corollary of the Strasbourg principle.