4.1 The Supreme Court and its interactions with, and influence over, the legislative and policy-making processes.

role of the supreme court

=rule of law means that everybody is equal before the law

=need for a clear separation of power between the judiciary and the exec which the supreme court is

=final court of appeal

=gov creates legislation and the supreme court interpret it

=before had been 12 law lords yet no separation of powers since they sat in the house of lords

=constitutional reform act 2005

=12 senior judges created by a five member selection committee

judicial neutrality

=no political bias and personal prejudice so that rule of law is applied impartially to all

YES JUDICIAL NEUTRALITY

=not members of any political parties

=judges salaries are not determined by the gov

=judges cannot be removed by gov due to security of tenure

=separate institution from legislative branch

Legal training 

->all judges have undergone extensive legal training 

 

Accountability 

->when they make judgementrs they need to explain their decisions by referring to the law and the precednt  

 

Not public figures 

->they are notr elected or directly accountable to the public or the gov

->helps gives confidence to citizens that justice will be dispensed in a fair manner 

->minority groups need to blieve that they will be given a fair hewaring 

->a key feature of any system that wished to describe itself as democratic 

judicial INDEPENDENCE

=separate from the legislative branch to be independent of the control and persuasion of the exec

YES TO JI

Legal training 

->all judges have undergone extensive legal training 

 

Accountability 

->when they make judgementrs they need to explain their decisions by referring to the law and the precednt  

 

Not public figures 

->they are notr elected or directly accountable to the public or the gov

->helps gives confidence to citizens that justice will be dispensed in a fair manner 

->minority groups need to blieve that they will be given a fair hewaring 

->a key feature of any system that wished to describe itself as democratic 

NO TO SUPREME COURT

=elite background and con judges favouring the status quo

=unable to understand how the law impacts modern soc

=

judicial review

= It is held in senior court in response to an individual or association that wishes to challenge a decision or policy adopted by a public body , or law passed by a Parliament 

used for

• Clarify the meaning of the law that may be a grey area unless gov has not passed a law prohibiting it ( in Britain you are allowed to do what the gov does not  prohibit yourself to do 

• Set the legal precedents 

• Review the actions of parliament and executive using the Human Rights Act  

• Determine whether ministers or state bodies have acted ultra vires (acting or done beyond one's legal power or authority)t meant  

BELMARSH CASE

• Nine suspected terrorists were being detained without trial in Belmarsh prsison. In a ground breaking decision, eight of the nine members of the House of Lords who heard the appeal declared that the detention of the suspects without trial contradicted the European Convention  

• It denied the inmates 'right to a free trial' 

• The verdict did not invalidate (strike down) the Anti-terrorism Act (it had been properly passed by Parliament ) but the political fallout from the ruling was immense 

• Introduced house arrests instead 

• E.g. went against 'the right to liberty and security' since there was not enough evidence that Rwanda would be a safe place.Sunak then amended the policy to be in line with the Supreme Court ruling--> supreme court  

STRENGTHS

• Better protection of human rights in british courts 

• Citizens no longer have to go to Strasbourg, France to get their cases heard 

• Many e.gs of government changing policy in light of Supreme court judgements e.g. Sunak and Rwanda policy  

• You still have the right to go to Strasbourg if you think your local court is not doing what you need 

• Better clarity of rights  

=WEAKNESSES 

• Parliamentary sovereignty is exempt since supreme courts can only give rulings of incompatibility 

• Not entrenched so governments can repeal the HRA e.g. in Johnson's 2019 manifesto he seeked to repeal the HRA 

• Power of derogation->in times of emergency, gov can bypass European Convention (this is called Article 15)-> a danger of this is that there is no limit to what constitutes an emergency which could lead to tyrannical ruling 

• No power of initiation—they cannot choose cases, they have to be brought to them 

• They cabt be struck down by supreme court 

ultra vires

=-->going beyond your powers 

 

=the judiciary upholds the rule of law and ensures members of the executive act within their legal powers e.g. HM Treasury v Ahmed and others (2010) Gordon Brown did not have the power to freeze the assets of those suspected as terrorists and was told that he was acting ultra vires so he just passed a law through Parliament which is not difficult due to whipping system and having majorities  

 

=the royal prerogative is powers Parliament can do without Parliament to make their actions legal 

=e.g. gordon brown passed the freezing tourist assets act in 2010 which then enabled the gov to bypass the supreme courts judgement 

 

LIMITATIONS OF ULTRA VIRES RULINGS 

=gov can pass a law through parliament t 

 

Power of Supreme Court vis-a-vis government and parliament 

 

=way in which the supreme court exercises control over gov and parrliament  

=judicial review 

-ability to enforce ECHR via the HRA 

-addresses disputes arising under the EU Law 

-ability to declare action ultra vires 

 

-ability to interpret and reinterprte the law –this can cause conflict between judicial branch and gov agenda e.g. immigration policy, terrorism ,etc  

GINA MILLER 2017

=supreme court determining the legality of gov action

=may gov trying to leave the eu through royal prerogative

=as we joined through legislation leave through legislation which is what the supreme court said

GINA MILLER 2019

=prorogue parliament and although it was the pm’s right not allowed

=illegal for such a long time and when constitutional issues needed to be debated