Power of the UK Supreme Court in relation to the other branches

Question 1

Why is the UK Supreme Court much less powerful than the US Supreme Court?

Answer 1

The US Supreme Court can declare Acts of Congress unconstitutional and strike them down, but the UK Supreme Court has no such power over Acts of Parliament

Question 2

Why can’t the Supreme Court strike down parliamentary statutes?

Answer 2

Because statute law remains the supreme source of constitutional law in the UK

Question 3

What function allows the UK Supreme Court to wield significant influence despite its limitations

Answer 3

Judicial review

Question 4

What is judicial review?

Answer 4

The process by which judges review the actions of public officials or bodies to determine whether or not they have acted in a lawful manner

Question 5

Why are the Supreme Court and Court of Appeals of particular interest to politics students?

Answer 5

Because it is these higher tiers of the judiciary that have the power to set legal precedent, establishing common law through their use of judicial review. These higher courts clarify the meaning of the law, whereas the lower courts simply apply the letter of the law

Question 6

What is common law?

Answer 6

The body of legal precedent resulting from the rulings of senior judges. It is an important source of the UK constitution

Question 7

What is common law also referred to as?

Answer 7

Judge made law or case law

Question 8

What two things can judicial review involve?

Answer 8

• Senior judges clarifying the law of a particular law or regulation
• Reviewing appeal cases previously heard at lower courts

Question 9

What does ultra vires mean in Latin?

Answer 9

Beyond the authority

Question 10

What is an ultra vires case?

Answer 10

Using judicial review to determine whether a member of the government has acted beyond the authority granted to them by law

Question 11

What two developments have allowed judicial review to grow in scope and importance?

Answer 11

• The growing importance of EU law
• The elevated status given to the ECHR after it was enshrined into UK law via the 1998 HRA

Question 12

What was the impact of Britain signing the 1972 European Communities Act?

Answer 12

It incorporated the Treaty of Rome into UK law, thus giving EU law precedence over past and present parliamentary statutes

Question 14

Explain the consequences of the 1990 Factortame case?

Answer 14

The ECJ established the precedent that that the UK courts could suspend UK statute law when it appeared to be in violation of EU law until the ECJ themselves were able to make a final decision on the statute in question.

Question 15

Where did the 1990 Factortame case get its name from?

Answer 15

After a Spanish owned fishing company, Factortame limited, challenged the legality of the Merchant Shipping Act under EU law

Question 16

When did EU law no longer have precedence over UK law?

Answer 16

1st January 2021, at the end of the Brexit transition period

Question 17

Where were cases under the ECHR brought before 1998?

Answer 17

The European Court of Human Rights

Question 18

Who established the ECHR?

Answer 18

The Council of Europe, an intergovernmental body that is separate from the EU

Question 19

Where are violations of the ECHR investigated?

Answer 19

They are investigated by the European Commission at the European Court of Human Rights at Strasbourg, again these bodies are both completely separate to the EU

Question 20

When did the HRA come into force?

Answer 20

October 2000

Question 21

What did the HRA do?

Answer 21

Incorporated most of the acts of the ECHR into UK law, allowing citizens to pursue ECHR cases through UK courts, rather than having to go through the European Court of Human Rights

Question 22

Why is the HRA not superior to parliamentary statutes?

Answer 22

Because it is based on an agreement in the Council of Europe, and so has nothing to do with the EU

Question 23

Why is the arguement made that the HRA has not actually granted that much power to the Supreme Court often made?

Answer 23

Because the Supreme Court can only declare incompatibility with the HRA, and parliament is not obliged to amend the offending statute

Question 24

Why has the HRA still afforded the Supreme Court increased power despite its legal limitations?

Answer 24

It has a persuasive authority that has enhanced rights protection and helped create a rights culture in the UK

Question 25

Describe the Reilly vs Department for Work and Pensions case

Answer 25

Reilly argued that the welfare to work scheme had infringed upon on their protections from slavery under the HRA. The Supreme Court concluded that the government had acted ultra vires in its decision to introduce the welfare to work scheme. However, parliament had since amended the law through the Jobseekers Act, meaning no offence was committed. The Supreme Court ruled that amending the law retrospectively in this fashion undermined the right to a fair trial under the ECHR. They declared incompatibility but did said it was up to parliament and government to decide how to move on, with the government ultimately deciding to leave the issue

Question 26

Why is the HRA weak?

Answer 26

Because as a normal piece of statute law, it can be amended, suspended, derogated or repealed just like any other piece of legislation

Question 27

What is a derogation?

Answer 27

When a country is temporarily exempt from following a law it had previously agreed to abide by. National governments are allowed to do this under the ECHR at times of national crisis

Question 28

What can courts do instead of striking down legislation that is incompatible with the HRA?

Answer 28

The can make a declaration of incompatibility and invite parliament to amend the offending statute

Question 29

What are the three ways in which the HRA proves influential despite its limitations?

Answer 29

• It has persuasive authority
• It can be used to set legal precedent through common law where statute law is unclear
• Draft legislation is now scrutinised by the parliamentary joint committee on human rights to ensure that is is compatible with the HRA

Question 30

Explain how the HRA was influential when the Supreme Court oversaw the Tigere vs Secretary of State for Business, Innovation and Skills case

Answer 30

Tigere had arrived in the UK from Zambia at age six and completed her a levels but was not eligible for a student loan because she did not have indefinite leave in the UK and was not able to apply for this for three more years. The Supreme Court accepted her appeal on the basis that her right to education and right to freedom from discrimination were being inhibited upon

Question 31

Make the case that the UK judiciary has had a greater impact on the work of parliament and the executive in recent years

Answer 31

• The CRA enhanced the separation of powers and therefore made the judiciary feel more able to challenge parliament and the executive
• Senior judges can directly question the actions of parliament and the executive under the ECHR since the passing of the HRA
• The Factortame case allowed the judiciary to suspend the actions of parliament if they were incompatible with EU law
• The 1992 Maastricht Treaty brought senior judges into conflict with the executive and parliament across a far wider range of policy areas than had previously been the case
• Parliament and the executive have started to ensure that legislation is EU and HRA compliant to avoid confrontation with the courts

Question 32

Make the case that the judiciary has not had a greater impact on the work of parliament and the executive in recent years

Answer 32

• The physical relocation of the Supreme Court was symbolic and did little to change the relationship between the judiciary, legislature and executive
• Parliament is under no obligation to fall into line with court rulings under the HRA
• Although the courts can declare that members of the executive have acted ultra vires, the executive can use its control of parliament to pass retrospective legislation which legitimises their earlier actions
• Many areas of public policy still remained in the hands of parliament following the Maastricht Treaty, limiting the scope of judicial action
• Brexit has limited the impact that the judiciary can have, as would any move to review the HRA, which could be easily done by a government controlling a strong enough majority

Question 33

What is sovereign in the UK?

Answer 33

Parliament

Question 34

What does parliamentary sovereignty make the judiciary?

Answer 34

A subordinate body, the judges are not in a position to defy the will of parliament

Question 35

Parliament is omnicompetent. What does this mean?

Answer 35

It is able to do whatever it wants; it can pass any law and expect to have it implemented and enforced

Question 36

What does the ominicompetence of parliament mean for the judiciary?

Answer 36

That judges must enforce the law, no matter how disagreeable they find it. They may pass opinion on the law and recommend change, but this as far as they can go

Question 37

What must judges take into account when interpreting the law?

Answer 37

The will of parliament when they were passing the law. They will look back at the original proceedings to determine what parliament intended. It is not for the judges to decide what is desirable, only for them to decide what parliament thought was desirable

Question 38

What can parliament and the executive do if judges make a decision they disagree with?

Answer 38

They can amend the statute or pass a new one correcting what the judges have done

Question 39

Give an example of parliament changing the law in the face of an unfavourable Supreme Court ruling?

Answer 39

The Supreme Court ruled that the government had acted ultra vires by freezing the assets of suspected terrorists. Gordon Brown subsequently passed the 2010 Terrorist Asset Freezing Act to grant the government such powers

Question 40

How could the executive and parliament swing power away from the judiciary?

Answer 40

By replacing the HRA with something less powerful

Question 41

What would repealing the HRA do?

Answer 41

Remove the ECHR from the jurisdiction of UK courts. The ECHR would still be a part of the UK constitution but grievances would have to be taken through the European Court of Human Rights, making it too expensive to be accessible for many

Question 42

Why is it almost impossible for the government to change the ECHR to suit its own goals?

Answer 42

Because any changes have to be agreed unanimously by all members of the Council of Europe

Question 43

What would replacing the HRA with a British Bill of Rights do?

Answer 43

Greatly reduce the power of the judiciary and increase the power and authority of parliament

Question 44

What do supporters of the HRA say about the idea of introducing a British Bill of Rights?

Answer 44

That it would be catastrophic for rights protection in the UK, leaving the judiciary unable to protect people from an over powerful parliament

Question 45

What do supporters of a British Bill of Rights argue?

Answer 45

It would ensure that rights protection is in the hands of a democratically elected parliament rather than unaccountable judges, as well as making sure that the provision of rights is in line with the national interest

Question 46

How has sentencing become a source of contention between the judiciary and the executive?

Answer 46

Politicians have sought to have more of a say in sentencing since rising crime rates became a hot button political issue in the 1990s. Judges argue that they should have freedom as they are in the best position to assess each individual case. Politicians argue that the public demand harsher sentences and that judges should be forced to respond to public opinion. Politicians appear to be winning on this debate, introducing things like minimum sentencing for certain crimes and repeat offences

Question 47

Describe the relationship between the judiciary and the government until the 1970s

Answer 47

Members of the judiciary were from a similar social and political background to members of the successive conservative governments at this time. They showed no support for citizens in relation to the state and judges were not expected to challenge the authority of the government in any significant way; they saw themselves as servants of the state rather than as an equal partner

Question 48

What 4 factors have made the judiciary more assertive in relation to the executive over the last 50 years?

Answer 48

• The growth of judicial review since the 1960s
• The growth of rights culture since the 1960s
• The passage of the 1998 HRA giving judges a codified statement of human rights which could be used to protect citizens from state power
• The CRA of 2005, which enhanced the independence of the judiciary

Question 49

How has the relationship between the judiciary and the legislature changed over the last 50 years?

Answer 49

It no longer sees itself as subordinate to the executive. Judges are no longer reluctant to challenge state power and protect the rights of citizens; it has become a counterbalance to executive power

Question 50

Why is the executive still able to dominate the judiciary?

Answer 50

• It has a greater claim to authority
• It can use parliamentary sovereign too reverse judicial decisions if it has control of the legislature, as judges must enforce the will of parliament by law

Question 51

Make the case that the executive is better suited to establish justice and rights

Answer 51

• The executive is elected and accountable and the judiciary is not
• Usually has a clear mandate to run the country and protect its citizens
• It can respond to public opinion
• Its overarching responsibility to protect its citizens means it will be willing to suspend rights in the interests of national security

Question 52

Make the case that the judiciary is best suited to establish justice and rights

Answer 52

• Judges do not allow political considerations to interfere with their protection of rights
• As qualified lawyers, they bring a totally rational bearing to cases of law and justice
• They are expected to be immune from outside populist influences
• They can afford to take a long term view because they are unelected, whereas politicians have to consider short term re-election prospects

Question 53

What has been the clearest evidence that the Supreme Court has served its role properly?

Answer 53

The fact that many senior politicians have criticised it for being too independent and challenging the government too robustly

Question 54

What has the Supreme Court help prevent?

Answer 54

An elective dictatorship

Question 55

What is an elective dictatorship?

Answer 55

A government that dominates parliament, usually through a large majority, and therefore has few limits on its power

Question 56

List the factors that allow the Supreme Court to influence the executive and parliament

Answer 56

• Its independence is guaranteed in law
• It can set aside executive actions that contradict the ECHR or common law
• It can interpret the law and so affect the way it is implemented
• Declaring legislation HRA incompatible often proves influential
• Its judgements cannot be overturned by a higher court anymore due to Brexit

Question 57

List the factors that limit the Supreme Court’s ability to influence parliament and the executive

Answer 57

• It cannot activate its own cases and must wait for appeals to be lodged
• Parliamentary sovereignty means that its judgements can be overturned by parliamentary statutes
• It has to rely on the executive and legislature to implement its rulings
• Its power and status are granted by statute law, so can be overturned and amended by parliament, meaning it is subject to the whims of a potentially hostile parliament
• The HRA could be repealed by parliament, which would remove a key component of judicial power and influence