4.1 Supreme Court UK

4.1.1 The judgements reached at the Supreme Court set legal precedents which can then be referred to in subsequent cases. ( JUDICIAL PRECEDENTS)

  • Although Parliament enacts legislation, the meaning and relevance of those laws have to be worked out by judges.

  • The highest court of appeal in the UK had been the House of Lords, where 12 law lords delivered judgements.

  • As part of Blairs government commitment to modernising the British constitution, the Constitutional Reform act 2005 was passed. This removed the Law Lords from the HOL and in its place, established the Supreme Court.

  • It is the highest court of appeals for all civil cases. It is also the final court of appeal for all criminal cases in England, Wales and Northern Ireland

  • The Supreme Court has the authority to determine whether an issue ought to be under the jurisdiction of the British government or devolved body.

  • The Supreme Court is the final court of appeal when there is a judicial review of how the government has acted.

4.1.2 The Neutrality and Independence of the Supreme Court

AGAINST NEUTRALITY/INDEPENDENCE:

  • Critics of the Supreme Court’s ability to provide justice argue that its membership is so privileged that decisions are unlikely to reflect modern society.

  • EDUCATION = Most are privately educated and attended Oxford or Cambridge Universities, and so these rarefied experiences could make them ill-suited to interpreting the law in a contemporary setting.

  • GENDER = Men dominate the Supreme Court. Eg. 2019, 3 female justices

  • GOVERNMENT = The government retain political influence over the appointment of Justices of the SC

  • Judges have often been stereotyped as representing the interests of ‘the Establishment’ Suggesting that, as privileged members of the social elite, they tend to look more favourably upon members of their own class.

    • eg. Justice Cantley presided over the trial at the Old Bailey in 1979 of Jeremy Thorpe (former Liberal leader) for conspiracy to murder Norman Scott. It was alleged that Cantley’s summary to the jury was especially prejudice against Norman Scott, the key prosecution witness who was a gay stable boy, who was not part of the Establishment.

FOR NEUTRALITY/INDEPENDENCE:

  • Housed in Middlesex Guildhall, importance of separation from Parliament suggests a courts political independence.

  • Judges are not permitted to be members of a political party, a judge must abandon political ambitions and associations

  • The salaries of judges are not determined by parliament, instead the government follows the recommendations of the Senior Salaries Review Body.

  • A judge can only be removed by a resolution passed by both Houses of Parliament. The have security of tenure so cannot be removed from office by the government. As a result, judges can act according to how they think the law should be interpreted without fearing consequences of loss in office.

  • The Constitutional Reforms Act 2005 further promoted independence by establishing the Supreme Court as a separate institution from the legislature.

4.1.3 The degree to which the Supreme Court influences both the Executive and Parliament

  • Determine the meaning of the law, setting judicial precedent.

    • Carries great weight in developing the meaning of law.

  • Deciding whether a public body, including the government, has acted beyond their authority.

    • Ultra vires: The principle that one has acted beyond its authority.

    • If the court rules that one has acted beyond its authority then these actions can be quashed because they have not been legally carried out.

  • Establishing where sovereignty lies within the UK

    • Gina Miller case (2017)

    • The Miller case upheld Parliamentary sovereignty against claims that the result of a referendum could empower the government to ignore Parliament makes it one of the most significant constitutional decisions of recent years.

    • The case clarified vital constitutional principles:

      • The SC can determine the evasions on which the government can deploy royal prerogative.

      • The government must consult Parliament if it seeks to abolish rights which Parliament has already bestowed.

      • Claims by the government that vote to leave the EU in the 2916 referendum gave the government the right to begin the process was illegal, since the result of a referendum is not legally binding.

  • Declaring when the government has acted in defiance of the Human Rights Act.

    • Judges can issue a formal statement of incompatibility, which can place significant pressure on the government to amend any laws which aren’t in accordance with the European Conventions on Human Rights.

      • Eg. The Belmarsh case (2004), The Blair government used the powers given to it by the Anti-Terrorism Crime and Security Act 2001 to hold foreign terrorist suspects indefinitely without trial. The Law Lords declared it was discriminatory. Government accepted this ruling however soon after Parliament legislated to introduce control orders.

    • This shows that although a declaration of incompatibility can have significant moral influence, Parliaments power to circumvent the judiciary is still great.

Is the Supreme Court Influential?

Yes

No

  • SC is the UK’s most senior court and final court of appeal.

  • SC has the most senior judges in the UK and their interpretation of the law is final.

  • SC has the ability to declare a formal statement of incompatibility between an Act of Parliament + the European Conventions on Human Rights - which can put significant political pressure on the government to amend the law.

  • SC has the ability to determine the location of sovereignty in the UK and declared when a public body has acted illegally by acting beyond its authority (ultra vires).

  • The UK Parliament is legally sovereign, meaning the SC cannot strike down an Act of Parliament.

  • SC cannot initiate cases, only determine cases which are brought to it.

  • Although the SC interprets the law, it is also bound by what the law states.

  • Although the SC can quash the decision of a public body for active beyond its authority, Parliament can legislate to give that body legal powers which it did not have before.

  1. With no separation of powers or a codified constitution, the Court has helped to rebalance the relationship between Parliament and the executive

    • SC has led to a significant re-balancing of the powers between parliament and executive - the Miller/Cherry cases were not about Brexit but about where constitutional powers lie

    • HOWEVER Judges should not make judgements in political areas, such as Brexit.

      strayed into areas of ‘politics’ and this undermines parliamentary sovereignty. Politics should be left to the democratically elected House.

  2. The SC upholds the rule of law, as legislated by parliament

    Declarations of incompatibility challenge parliamentary sovereignty

    • eg. Liberty supreme court case, approval of judges however failed legislatively

  3. Judicial reviews, such as this, often uphold the rights of Parliament.

    These are an important way of limiting the powers of governments that act ultra vires, trying to by-pass parliament.

    The current system lacks clarity. The SC has taken on additional powers at the expense of parliament.