Is the court effective in scrutinising the government? Flashcards
Intro
Yes:
- UKSC can reject government rulings on the basis of historical precedent
- UKSC can reject government actions which are incompatible with the HRA
- Judges can’t be removed from office through parliamentary rule
No:
- Parliament can pass new legislation overruling UKSC decisions
- Parliament can ignore declarations of incompatibility
- Judges have to retire by the age of 70
Para 1
Yes, UKSC can reject government rulings on the basis of historical precedent.
E.g. in 2017, Theresa May tried to invoke article 50 via the royal prerogative. The supreme court rejected it on the basis of historical precedent.
(This therefore allowed the court to temporarily prevent the PM from beginning the process of leaving the EU by limiting their ability to exercise her royal prerogative powers)
No, due to the doctrine of parliamentary sovereignty, the PM and parliament can override the supreme court. E.g. following this supreme court ruling, parliament passed a new law stating that the PM could use the royal prerogative to invoke article 50.
(This therefore allowed parliament and by extension the PM to bypass the supreme court with a simple Act of Parliament and successfully begin the process of leaving the EU)
(US link)
In the US, a constitutional amendment is needed if the supreme court strikes down government actions as unconstitutional, which requires a supermajority.
E.g. in 2017 President Donald Trump tried to use an executive order to ban immigration from 11 middle eastern countries, and the supreme court struck it down as unconstitutional as it violated the 1st amendment. Whereas in the UK, the executive can simply change the wording of the constitution, in the US there is a separation of powers preventing the President from altering the constitution.
(Therefore, the US supreme court is more effective at holding the government to account as their rulings are difficult to overturn)
Para 2
Yes, the UKSC can enforce the HRA 1998 by declaring legislation as incompatible with the ECHR.
E.g. the UKSC ruled that the Right to Rent scheme was incompatible with article 14 of ECHR
(This therefore allowed the court to protect the rights of tenants who would otherwise be denied lodging if they could not prove their citizenship and prevented the government from overstretching their powers)
No, the government can choose to ignore declarations of incompatibility.
E.g. in 2005 the court ruled that a blanket ban on denying all prisoners the vote was incompatible with ECHR, but parliament did not subsequently change the law
(This therefore shows that the courts are incapable of upholding the HRA as their declarations of incompatibility did not block the government’s legislation)
Para 3
Yes, judges have security of tenure.
E.g. UKSC justices cannot be removed under most circumstances for criticising the government. They simply have to retire at the age 70.
(Parliament therefore cannot threaten their job which allows them to make decisions which may not be in the government’s interests)
No, the government knows when a SC judge will leave office, so can wait until a judge retires to pass a certain piece of legislation.
E.g. the government passed the Draft Communications Bill in 2020, after specific judges who opposed it had retired.
(This allowed parliament to pass this legislation by waiting for certain judges’ tenures to end, at which point there would not be adequate opposition on the court for the bill)
(US link)
In the US, judges have a life tenure so Congress cannot wait for a judge to retire. Congress has to vote to impeach a supreme court judge, but this has never happened. Their job security is therefore greater than judges in the UK which allows them to scrutinise the government to a greater extent.
Conc
No:
- Parliament can pass new legislation overruling UKSC decisions
- Parliament can ignore declarations of incompatibility
- Judges have to retire by the age of 70
(US link)
-Due to the formal separation of powers in the US, the SC is able to scrutinise the government much more effectively
