the supreme court

overview of supreme court role and composition

• The SC is a court of appeal for criminal and civil case rulings made in the lower courts - it is the UK’s final court of appeal, excluding Scotland

• The SC is not the final court of appeal for criminal cases in Scotland

• The SC hears appeals on cases where there are issues of public significance and where they are arguable points of law

• Key functions include defending rights and liberties, interpreting and enforcing law, judicial review and applying the HRA (1998)

supreme court - defending rights and liberties

• The SC defends the rights and liberties of UK citizens

• The SC uses the rule of law to provide a wide range of protections of citizens’ rights

• Judicial Review, Natural Justice, and precedent form past rulings protect rights and freedoms

supreme court - law enforcement

• The SC can uphold laws and rights when challenged such as the rights given by the FOIA (2000)

supreme court - government decisions

• The SC can rule against government laws and declare them illegal

• The SC can declare government decisions incompatible with the ECHR

supreme court - composition

• The SC has 12 justices, including a President, Deputy President and 10 other justices

• The Constitutional Reform Act (2005) established the Supreme Court, which replaced the Law Lords, who ruled in the Appellate Committee of the HoL, as part of the separation of parliament and the judiciary

• SC justice do not have a term limit but must retire at 75

supreme court - judicial independence

• Judicial independence is the principle that judges are free from political pressure because they are independent of the executive and legislature

• Judges are able to make rulings without external pressures, including having the security of tenure and an independent appointment and promotion process

• MPs and the government are not allowed to comment on court cases which are taking place to prevent political influence over the court

supreme court - judicial neutrality

• Judicial neutrality is the principle that judges are politically neutral and do not get involved in any form of party politics

• Judicial neutrality is important because Supreme Court judges have to rule on political issues

  • The SC rules on highly political cases including in 2012 when it allowed 4 Zimbabwean refugees to remain in the UK that the government wanted to be deported

debate - supreme court IS neutral and independent

• SC judges are neutral as they cannot engage in political activity and publicly express their political views

• Judges are shortlisted by an independent selection committee, and the government has limited say on who becomes a judge

• SC judges have the security of tenure which prevents the government from punishing judges based on their rulings

• The government cannot comment on cases which are ongoing meaning that the SC makes independent decisions without the government intervening

debate - supreme court ISN’T neutral

• Judges are not balanced demographically, with the majority of SC justices being male, white and middle-aged

  • The SC’s imbalance means that the court arguably lacks neutrality in its rulings

  • A more representative SC would potentially make the court truly neutral, as there would be a range of viewpoints in rulings that judges make

debate - supreme court ISN’T independent

• The Lord Chancellor, who is a member of the executive, makes the final decision on appointments to the SC

  • The Lord Chancellor’s role in appointments gives the government influence over choosing judges who are more likely to share similar positions to the government regarding key issues

• The SC does not often rule against the government in cases

  • This suggests a lack of independence in practice, and that the government has some influence over the SC

supreme court influence over other branches of government s- judicial review

• The SC influences the executive and parliament through judicial review

• The SC only has limited powers of judicial review

• The SC can only overturn secondary legislation or executive actions, and cannot overturn primary legislation (Acts of Parliament)

supreme court influence over the other branches of government- ultra vires

• The principle of ultra vires is when someone or something acts beyond their powers - acting without legal authority, despite requiring legal authority

• The SC can overturn executive actions if they are ultra vires, but it cannot overturn Acts of Parliament

  • EX: in 2016, the Lord Chancellor was ruled to have acted ultra vires in attempting to introduce a ‘resistance test’ to the Legal Aid, Sentencing and Punishment of Offenders Act 2012

supreme court influence over the other branches - declaration of incompatibility

• The SC can make rulings based on the HRA, which oppose government decisions, particularly over issues of state security

• The court can also make a declaration of incompatibility - this means that it declares parliament’s legislation opposes the rights set out in the ECHR

• Supreme court judges uphold decisions on information being published against the wishes of the government in cases over freedom of information

case studies of the supreme court opposing government

• DECLARATION OF INCOMPATIBILITY:

  • In 2018, the Hight Court issued a declaration of incompatibility relating to the Civil Partnership Act 2004

  • The court found that restricting civil partnerships to have same-sex couples was incompatible with the ECHR because opposite-sex couples were denied the same legal option

• FREEDOM OF INFORMATION:

  • In 2015, the SC ruled in favour of a freedom of information request requiring the publication of Prince Charles’ letters to government ministers