situation pre-supreme court:

• 12 Law Lords: members of House of lords neutral crossbenchers

• headed by Lord Chancellor

  • was speaker of Lords, a cabinet minister n head of the judiciary » obv potential conflict between law n politics

• lord chancellor advised govt on legal matters

• cases heard by 5 law lords

• LC appoints senior judges but pm can have final say

how is supreme court different?

• lord chancellor no longer head of judiciary - replaced by lord chief justice

• lord chancellor position combined w/ justice sec

  • not active in judiciary

• lord chanc no longer speaker on on HofLords

• SC has 12 justice of the Supreme Court

• head of the SC known as president of the supreme court

• selection committee established to recommend candidates to the SC

• SC justice can only be removed by a vote in both houses and owing to misconduct

appointment process:

• vacancy must occur

• must retire @70

• special commission is called to look at candidates - must have held high office for 2 years or 15 years legal xo

• commission conducts interviews n makes recommendations to Lord Chancellor

• can refuse candidate but rare - only if deemed ‘unsuitable’

• passed to PM and then monarch

role of the supreme court:

• unlike typical court

• not to prove innocence/guilt but to ensure law being applied correctly

• includes govt n its reps

• cases it hears have already been heard in a lower court

part of EU n after:

• when uk was part of eu

  • cases heard by sc can still be taken to the european court of justice if related to areas of eu law (workers’ rights, etc) - not now

• cases relating to human rights can still be referred to the european court of human rights » no guarantee that uk govt will listen

reasons for case being heard by supreme court:

• judicial review

• case may set a precedent

• involves an important interpretation of law

• case of great public interest

• key human rights issue

judicial review:

“the power of the judiciary to review, and sometimes, reverse, actions by other branches of govt that breach the law or that are incompatible with the human rights act.”

conducting judicial review:

• citizens may feel they have been mistreated by a public body, usually part of the state @ central/local level

• judicial review will examine whether the claims are justified

• may involve compensation/reversal of a decision

• cases have grown since 1960s n esp since the human rights act

R (Miller) v secretary of state for exiting the eu

• heard in the high court in oct 2016 n then brought to the supreme court in later that year

• gina miller requested review of whether david davis, sec of state for exiting the eu, had the prerogative power to trigger article 50 of the eu

• her legal argument was that parliament is sovereign n stood above the claimed prerogative power to bring the uk out of the eu

• the govt’s position was that it did have such a prerog power

• high court ruled govt did not have that power

• because departure of eu would affect rights of uk citizens in some cases

• supreme court upheld that decision

• govt forced to seek parliamentary approval to leave eu

• high court stated: “we hold the sec of state does not have the power under the Crown prerogative to give notice that pursuant to Article 50 of the Treaty of the EU for the UK to withdraw from the EU.”

importance of miller v sec of state case:

• it is for the judiciary to determine the limits of the govt’s prerog powers

• that the rule of law is superior to political considerations

• that parliament is sovereign over such matter in that the decision to leave the eu affects the rights of uk citizens n so the govt must obtain parliamentary approval

• that referendums are not legally binding n their outcome must be confirmed by parliament, not govt

ultra vires:

• literally ‘beyond the powers’

• an action that is taken w/o legal authority when it requires it

• supreme court’s job to ensure govt does not exceed its powers

• also job to protect human rights

R (Miller) v the PM (2019:

• sept 2019: bojo prorogued parliament for 5 weeks

• at time when parliament were due to debate his brexit withdrawal bill

• gina miller brought case on behalf of 70 ppl inc many MPs

• argued PM has exceeded powers n had acted illegally

the result:

• lady hale summed up:

  • “the decision to advise her Majesty to prorogue parliament was unlawful because it had the effect of frustrating or preventing the ability of Parliament to carry out its constitutional functions without reasonable justification.”

the supreme court n rwanda:

• Ever since the Conservatives came up with the idea of sending immigrants to Rwanda, debate has raged on whether this was actually legal.​

• Lawyers were able to successfully halt the government from sending anyone to Rwanda.​

• With Sunak making ‘Stop the Boats’ one of his key pledges, and with right wing voices getting louder, the PM doubled down on making flights to Rwanda happen. ​

• The government claimed that Rwanda was a safe third country to send immigrants to​

• Lawyers for several refugees due to be flown to Rwanda appealed and the case which reached the Court of Appeal before finally reached the Supreme Court ​

supreme court ruling 2023:

• Lord Reid ruled on the Rwanda scheme after a case was brought to the Supreme Court on 15th November 2023​

• Yes, it is legal to send immigrants to a safe third country​

• However, the SC ruled that Rwanda is not a safe country​

• They noted that there was a real risk of ‘refoulment’. This means that Rwanda might send people back to their country of origin and therefore ill-treatment​

• Effectively, the SC ruled that Rwanda is not safe, so the current scheme is unlawful. They pointed to Rwanda refouling people back to conflict zones and it’s record on following its obligations under international law​

• Importantly, the SC stated that this decision was not totally based on the UK’s adherence to the UNCHR.

where now?

• Sunak has brought emergency legislation to the HoC to say that Rwanda is ‘a safe country’ and have made a new agreement with the country in December 2023.​

• The Bill has passed through the HoC and is currently (March 2024) going through the committee stage in the HoL​

• It has been widely criticised for saying ‘black is white’ but has the support of many senior Tories though the far right (Truss, Braverman, 50p Lee) want the UK to leave the UNCHR

ensuring rule of law is applied:

• All citizens should be treated equally under the law​

• All courts have duty to ensure this but whether rule of law has been correctly applied is ultimately determined by the Supreme Court​

• This means in effect it overseas all courts

interpretation of the law:

• The precise meaning of a law is not always clear​

• There will be conflicts on what a law is supposed to mean​

• In such cases, the Supreme Court will Justices are tasked with interpreting the meaning of laws​

• This may lead to a precedent – a meaning of law that must be followed by all other judges in similar cases

hearing cases:

• Not all Judges hear case. Average of 5​

• A majority needed – that’s why an odd number of judges sit​

• Cases set standards for future similar cases

some examples:

• Vince v Wyatt (2015). Ms Wyatt and Mr Vince divorced after which he became wealthy. Ms. Wyatt claimed for maintenance. Ruled that Ms Wyatt had right to claim money. Opened door for many similar cases​

• Trump International Golf Club v Scottish Ministers (2015).  Trump argued Scottish government’s decision to build a wind farm near his golf course beyond its powers. Trump lost case. Court argued government had right to do so​

• Pimlico Plumbers v Smith (2018). Whether ‘gig economy’ workers self-employed or employees entitled to rights. Court ruled they were employees, clarifying and updating laws​