Evaluate the view that the Supreme Court has become too powerful.

Question 1

Judicial Review

TOO POWERFUL

Answer 1

• Judicial review gives judges too much influence over public policy and democratic process
• Some say it is unnecessary as it prevent ministers who have a mandate to pursue
• o i.e. two Brexit-related judicial reviews in the Supreme court, contributed to the delay of Brexit, despite approval of the public in 2016 referendum
• • can issue an ultra vires (courts decide weather a public body or government has exceeded legal powers)

Question 2

However… (judicial review)

Answer 2

it reviews the legality and procedure of acts of Government in order to make sure it doesn’t infringe on our rights

Question 3

Judicial Review

NOT POWERFUL

Answer 3

• Court must wait for a case to be brought before it
• it has no power to initiate a judicial review
• It is essential to the rule of law that decisions and actions taken by the executive branch have a clear and legal basis, have conditions

o Number of applications for judicial review fell by 44% between 2015-19 due to cuts to legal aid for such challenges

• 218 out of the 3,597 cases have actually been successful
• 50% of these cases were won by the Govt. = bias

Question 4

CREATION OF THE SUPREME COURT

SC IS TOO POWERFUL

Answer 4

• makes conflict more likely, leading to a more active court
  o i.e. disputes over immigration, terrorism, human rights and Brexit have increased in recent years
• Unelected, unaccountable judges, challenged elected representatives in the HOC
• more rulings against gov policies
  2011- SC ruled DNA records of people who had not been convicted of a crime could not be held by the police
• GOV GAVE IN
  on the right that it offended the right to privacy

Question 5

CREATION OF THE SUPREME COURT

NOT TOO POWERFUL

Answer 5

• bound by the laws passed by Parliament, cannot create laws themselves to limit + control Govt
• they cannot be proactive and have to wait for cases to come to them
• Law lords make similar rulings, i.e 1991, Kenneth baker, failed to comply with court order in a asylum case

they have the same powers as the Law Lords = still limited on scrutiny of the Govt.
- Politicians undermine the independence of the supreme court and the judiciary more widely
o i.e. successive government have set minimum terms for criminal offences and sentencing guidelines for judges

Question 6

However.. (creation of the sc)

Answer 6

• judicial independence is a key aspect of the SC, allows them to act independently from the Govt without scrutiny
• however as the SC cannot make or strike down legislation( unlike the USA) it is not too powerful

Question 7

HRA

SC TOO POWERFUL

Answer 7

allows the UK supreme court to interpret the ECHR and issue compatibility statements,

hinders the ability of government to fight terrorism and curb immigration

• Strike down laws passed by the Scottish, Welsh and NI legislatures that go beyond the powers granted by the devolved statues or are incompatible with the ECHRA
• EcHR is quite vague, and contains wide general statements of principle
• Article 8 is an example; it is so wide as to be incapable of practical application
• They give rise to much uncertainty

Question 8

Examples of sc winning over the gov in hra

Answer 8

e.g. 2017, Civil Partnership Act of 2004 was incompatible w/

ECHR- HM treasury v Ahmed (2010)

• gov wishes to freeze the assets of suspected terrorists
• court ruled that the gov did not have the legal power to do this, as it infringed the presumption of innocence in common law and HRA

Question 9

However… (HRA)

Answer 9

• The courts are simply ensuring that rights are protected

Question 10

SC is not too powerful (HRA)

Answer 10

Govt. can ignore the ‘declaration of incompatibility- parliament is ultimately sovereign

• the declaration of incompatibility is advisory, therefore they do not have any real substance when it comes to holding Govt to account

A powerful executive with a majority in Parliament determines the range and scope of rights.

• Justice serious act (2013) allowed secret courts into the justice system, the supreme court was powerless to stop

The UK supreme court has no enforcement power

i.e. government has failed to respond fast enough to court rulings that found government breached air quality laws which affect health rights of citizens