On this page you will find discussion and analysis of the fundamental ideas that underpin discussions about the UK judiciary. The content here is specifically designed for A level politics and early undergraduate level students looking to deepen their understanding of the topic. At A level specifically, the component 2 topic on relations between the branches looks at the role and powers of the Supreme Court and its ability to hold the other two branches of government in check.
Click on any of the questions below to be taken to the answer.
When and why did the UK get a Supreme Court?
The Supreme Court is the UK’s final court of appeal for all civil cases, and for criminal cases in England, Wales and Northern Ireland. It also hears constitutional cases and ones that have the most far-reaching consequences for the public. The Constitutional Reform Act 2005 provided for the establishment of a UK Supreme Court. It started sitting in October 2009. Before this, the UK’s final court of appeal and constitutional court was based in the House of Lords. Twelve judges, often referred to as ‘Law Lords’, had previously carried out the functions of the Supreme Court as the Appellate Committee of the House of Lords.
However, by the early 2000s, the view that this longstanding arrangement might not be in keeping with the independence and impartiality expected of the judiciary had gained ground. There were concerns that it was not appropriate for the Law Lords to both sit in the legislative chamber that helped make the laws and act as the final interpreters of those same laws. It was worried that this model might not provide enough separation between the legislative and judicial branches of the constitution. Furthermore, it could be in breach of Article 6 of the European Convention of Human Rights, which guarantees the right to a fair trial before ‘an independent and impartial tribunal’. It was also thought that the old arrangements were confusing and unclear for the public, making it seem like the House of Lords was deciding cases, rather than a committee of the UK’s most senior judges.
It was therefore decided that a UK Supreme Court would be established that was separate from the House of Lords. This would make sure that there was an appropriate separation between the powers of the judiciary and the legislature. In 2009, the Supreme Court began work in its refurbished building in Middlesex Guildhall, on the corner of Parliament Square.
Scotland is a distinct legal jurisdiction, and there are important differences between Scots law and the law of England and Wales. Northern Ireland, too, has its own legal system. The distinct origins and differences of the Scots system are why the Supreme Court is not the final court of appeal for Scottish criminal cases. These cases are heard by the High Court of Justiciary, based in Edinburgh.
What is the role of the Supreme Court?
Cases that make it to the Supreme Court are usually those with the greatest general public importance. They often have wide-ranging implications for the relationship between government and the public or for the relationship between the different institutions of the UK constitution. For example, the Supreme Court hears cases related to ‘devolution issues’; in other words, if there is a dispute about the powers of one of the devolved governments, it could end up in the Supreme Court.
However, whilst the Supreme Court has the power to offer a final interpretation of disputed points of law with significant public or constitutional importance, its powers are still more limited than those of supreme courts in many other countries. In particular, it does not have the power to declare void primary legislation enacted by the UK Parliament. This is because of the doctrine of parliamentary sovereignty, which means that Parliament has, at least theoretically, the power to make or unmake any law without constraint, even from the Supreme Court.
The Supreme Court can issue a ‘declaration of incompatibility’, which formally declares that an Act of Parliament is in breach of the European Convention on Human Rights. But Parliament is not legally obliged to change the Act as a consequence, although it may often choose to do so. This in contrast to the Supreme Court of the United States, which has the power to strike down laws if they are ruled to be in breach of the US Constitution.
Why is it important for the Supreme Court to remain independent and neutral?
An independent judiciary is one of the cornerstones of the UK constitution. This means that the judiciary is not influenced by external pressures, whether they be wealthy individuals, the media, powerful politicians or the government. Furthermore, judges must be neutral; that is, they must decide cases based on the facts before them and in accordance with the law, rather than based on any personal preference or prejudice. Both of these conditions are essential to ensuring that everyone receives a fair trial, the public have confidence in the legal process, and the fundamental constitutional principle of the rule of law is maintained (that everyone is subject to the law and no one is above the law).
It is especially important that the Supreme Court upholds these principles. This is because it is the most well-known and visible court in the UK, and it also decides the cases with the most far-reaching public consequences, and those that relate to the constitution itself.
Further reading: you can find out more about the independence of the judiciary, why it matters and how it is achieved both in appearance and in practice on the UK judiciary website.
What is judicial review?
Judicial review refers to the process by which the public can ask judges to review the exercise of a power by a public authority. There are a number of reasons for which a decision can be ruled to be unlawful by the courts; for example, if the procedures that led to it were unfair or if it is irrational. Whilst judges cannot overturn primary legislation, they can declare secondary legislation to be void if it is found to be ultra vires. This means it is beyond the scope of the powers that have been granted to the authority by primary legislation.
Judicial review can be a powerful tool through which citizens ensure that ministers and other public officials are not abusing their power. It allows them to call on judges to review whether the decisions that affect them are legitimate and lawful. It is therefore one of the key mechanisms of accountability in the UK constitution.
The Supreme Court publishes a list of current and past cases of judicial review heard by the court, you can find them here.
Why is it claimed the Human Rights Act 1998 has given judges too much power?
The Human Rights Act 1998 placed the rights and freedoms contained in the European Convention on Human Rights (ECHR, which the UK was already signed up to) in domestic UK law. Whilst judges have long been able to rule on the legality of the use of public power, the Human Rights Act gave judges new grounds on which to overturn the decisions of public authorities.
The Act gave UK judges the authority to review whether public institutions were complying with the rights set out in the ECHR. In this sense, many argue it gave the judiciary a bigger role and made them more powerful.
In particular, it gives the courts the power to decide whether primary legislation is compliant with the rights set out in the ECHR. If they find that a statute breaches one of the Convention rights, they can issue a ‘declaration of incompatibility’. Unlike in the United States, the Supreme Court of the United Kingdom does not have the power to declare an Act unconstitutional and overturn it. Rather than striking down legislation, a declaration of incompatibility gives government and Parliament the opportunity to change the offending statute. But they are not obliged to change the law in these circumstances (although, in the past, they nearly always have done).
UK judges remain less powerful than their counterparts in many other countries. Nonetheless, some argue that the Human Rights Act gives the judiciary too much power. These opponents of the Act say that giving judges the ability to declare primary legislation incompatible with human rights, which puts pressure on Parliament to change the law, amounts to an interference with the doctrine of parliamentary sovereignty – under which Parliament can achieve anything it wants through passing an Act of Parliament. These critics also argue that the Human Rights Act leads to judges becoming involved in matters of politics and policy. They are supposed only to rule on whether a particular action or law is compatible with the ECHR. However, those who are concerned about excessive judicial power argue, in practice they make decisions on what they believe to be the merits of a particular decision or law – that is, whether they agree with it.
Why is it sometimes claimed that judges have become too politically active?
In recent years, the claim has regularly been advanced that judges have been overreaching into matters of politics and deciding cases on the basis of whether a decision corresponds with certain values. This is often referred to as ‘judicial activism’.
This criticism of the judiciary became especially prominent during the Brexit process in reference to several high-profile cases. In January 2017, for example, the Supreme Court ruled that the government must pass an Act of Parliament in order to start the withdrawal process from the European Union. In doing so, the Supreme Court upheld a decision by the High Court – who had been branded ‘enemies of the people’ by the Daily Mail for their decision – that the government could not initiate departure from the EU through the Royal Prerogative.
Royal Prerogatives are powers which were formerly exercised by the monarch, but which now in practice usually lie with ministers and the Prime Minister. Through the foreign affairs prerogative, the government typically has the power to enter and exit international treaties without necessarily needing parliamentary approval. However, the Supreme Court ruled that the power could not be used to take away rights that had been previously granted by an Act of Parliament (as would be the case if the prerogative was used to exit the EU). Some felt that the Supreme Court had gone beyond its proper role in deciding that an Act of Parliament was necessary to start the process of leaving the EU.
In September 2019, the Supreme Court delivered a second controversial judgement, again concerning the use of a Royal Prerogative – this time the power to prorogue Parliament (to suspend Parliament for a period between parliamentary sessions). It was argued that the prorogation period was deliberately lengthy so as to give Parliament a minimal amount of time to prevent a no-deal exit from the EU. The Supreme Court found that the Prime Minister’s advice to the Queen to prorogue Parliament was unlawful because it interfered with Parliament’s ability to perform its constitutional function of scrutinising legislation and holding the government to account. Again, critics argued that the judiciary had overstepped the limitations that should apply to it, and was ruling on matters that were conventionally understood to be outside of the remit of the courts.
Further reading: Tasneem Ghazi, ‘Don’t Stand So Close to Me’: the Faulks report and judicial overreach’
What is sovereignty?
Sovereignty is a political concept that refers to where the ultimate authority in a state lies. It denotes which institution is the supreme power. This ultimate power used to rest with the monarch – or sovereign – which is where the term comes from. Where sovereignty is located depends on the kind of constitution a territory has. In countries with a codified constitution, the constitution itself is sovereign. In practice, this means that the judges who interpret and apply the codified constitution hold the ultimate power. This is often referred to as legal sovereignty.
Other countries have what is known as political sovereignty. In these systems, it is political, rather than legal, institutions that have the ultimate authority. The UK is traditionally thought to have one such system, as under the doctrine of parliamentary sovereignty the UK Parliament is the supreme source of authority: whatever the democratically elected representatives decide upon is law, and if expressed in an Act of Parliament cannot be overturned by the courts.
Why is it claimed that the location of sovereignty has shifted in recent years?
However, some constitutional scholars have argued that the changes made to the UK constitution over the last 25 years have in fact shifted the location of sovereignty. They argue that, in practice, full sovereignty no longer lies with Parliament. Professor Vernon Bogdanor made this argument in his 2009 book, The New British Constitution. In it, he argued that constitutional reforms such as the Human Rights Act and the devolution settlements – although they could technically be repealed by Parliament – were in practice of a more fundamental nature. Professor Bogdanor and others hold that changes such as these have had the effect of distributing sovereignty between the different branches of the state and between the different territories of the UK. The outcome of this is that the UK has moved towards having a more legal constitution – where the constitution itself, rather than Parliament, is sovereign.
Where does sovereignty today lie in the United Kingdom?
There is much contestation as to where sovereignty in the UK is now located, and where it should be located. As we have seen, during the Brexit process the Supreme Court made some important decisions. Some see this as evidence that the UK constitution has moved in a more legal direction, with judges now enforcing the principles of the UK constitution. However, during the UK’s withdrawal from the EU the wishes of the devolved administrations were repeatedly ignored by the UK Parliament, highlighting for some the persistence of parliamentary sovereignty.
Boris Johnson’s Conservative government has gone about reasserting the dominance of the central UK government, both through legislation and other actions. The government argues it is seeking to restore the traditional UK constitution, where ultimate power was vested exclusively in the UK Parliament. However, critics believe that the government is in fact empowering the executive at the expense of Parliament, the courts and the devolved administrations.
Further reading: Paul Tyler, ‘Parliamentary sovereignty or elective dictatorship?’
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